What Can Big Data Protection Learn from Trade Secret Protection?

Abstract

The nature of big data protection remains an enigma. By ‘big data’, we refer to data that are non-copyrightable, non-secret and do not fall into the scope of existing intellectual property laws. Assuming such data do require some sort of protection in order to incentivize investment, what form shall the protection take? Contract law, tort law, unfair competition law or a sui generis intellectual property law? There is no consensus among different jurisdictions. Some jurisdictions follow a property law approach. For example, the EU has been offering sui generis IP protection to databases with Directive 96/9/EC on the Legal Protection of Databases. In contrast, many other jurisdictions choose to follow a non-property law approach. Take the United States for example. A century after International News Service v Associated Press, in which the misappropriation doctrine was used to offer ad hoc protection to hot news, the US still has not introduced a sui generis right. Even though non-copyrightable, non-secret and valuable data do receive some legal protection, the ideal form of protection is yet to be clarified.