Resisting IP Overexpansion: The Case of Trade Secret Protection of Non-Personal Data

Abstract

This article analyses how intellectual property rights (IPRs) affect access to non-personal data (NPD). In so doing, it homes in on a quasi-IPR, trade secrecy, and shows how applying it to NPD can lead to the overexpansion of IP protection. The risks of overprotection relate to the perpetuity of trade secret protection and the predominant interventions to correct market failure that scholars advance in order to restrict IPRs and quasi-IPRs. The paper then goes one step further to survey regulatory and interpretive solutions that could help to mitigate the risks of overprotection and make room for creating data access rules. Specifically, it explores two principles deriving from “physical” property theory that can be rejigged for the purpose: the numerus clausus of IPRs and the social function of intellectual property. Conceptualised in a novel fashion, these could steer legislatures and courts towards a restrictive understanding of IP forms and contain the propertisation of new intangibles, such as NPD aggregations.