The Interface Between Data Protection and IP Law: The Case of Trade Secrets and the Database sui generis Right in Marketing Operations, and the Ownership of Raw Data in Big Data Analysis

Abstract

Data is the new oil. The value of personal data has changed marketing strategies and business models based on data analysis. This article analyses whether sets of personal data collected for commercial exploitation can be the subject matter of intellectual property (IP) rights, specifically trade secrets and the database sui generis right. The first part of the article provides a concise analysis of EU data protection laws and the requirements for processing data for commercial purposes. The second part examines whether lists of customers and profiling data can be protected as business information under the EU trade secret law, also recalling Italian case-law experience (Italy is a unique example, where trade secrets constitute full IP rights). The third part analyses whether a database consisting of personal data processed for marketing and profiling purposes can benefit from the database sui generis right regime. The last part of the article investigates the case of data ownership in the context of big data, particularly in relation to cloud platforms. This part elaborates the ownership regime set out by the intersection between data protection and intellectual property laws. Finally, the article asks which ownership regime is applicable to raw data that are not subject to privacy or intellectual property rights, in particular, whether raw data can be subject to a general property right.