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Regulating non-personal data in the EU : law, governance and justifications
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Florence : European University Institute, 2023
EUI; LAW; PhD Thesis
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FIA, Tommaso, Regulating non-personal data in the EU : law, governance and justifications, Florence : European University Institute, 2023, EUI, LAW, PhD Thesis - https://hdl.handle.net/1814/76182
Abstract
This thesis scrutinises the governance of non-personal data in the European Union. First, it shows that the fundamental dimension of data governance is data access, which is a relation of power of someone (an access granter) over something (non-personal data), and between an access granter and someone who seeks to access data (an access seeker). Large access seekers such as machinery manufacturers, OEMs and big techs restrict access to non-personal data by utilising private law modules such as IP standards, contracts, and TPMs. These form ‘unilateral data control’, and ultimately cause problems in terms of interpersonal and social injustices. The central inquiry driving the research is then how non-personal data should be regulated to address interpersonal and social injustices in data governance. To answer this question, it is shown that there exist various normative approaches to data governance, ranging from more market-friendly ones (eg libertarian, liberal-egalitarian, and welfarist data governance) to those emphasising human flourishing and political participation (eg communitarian, institutionalist, republican and critical data governance). Examining the EU data governance laws, the thesis then finds that they primarily focus on market completion. This perspective overlooks other rationales for regulation. Contractually constructed collaborative forms of data governance (such as data sharing pools, data commons, and data trusts) in smart agriculture, smart manufacturing, and the smart city, on the other hand, show that there exist practical ways to open up data access and increase participation and democratic representation for access seekers. Lastly, the thesis proposes a just data governance system for the EU. Its core components include treating non-personal data as a commons, valuing democratic participation in data governance, positing access rights for seekers, circumscribing data uses, and enhancing fair value distribution.
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Defence date: 14 December 2023
Examining Board: Prof. Peter Frank Drahos (European University Institute, supervisor); Prof. Kathryn Henne (Australian National University); Prof. Martijn Hesselink (European University Institute); Prof. Martin Kretschmer (University of Glasgow)
Examining Board: Prof. Peter Frank Drahos (European University Institute, supervisor); Prof. Kathryn Henne (Australian National University); Prof. Martijn Hesselink (European University Institute); Prof. Martin Kretschmer (University of Glasgow)
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Chapter 2 'Unilateral data control' chapter 3 '3. Theories of data governance' and chapter 6 'Just data governance: core components and principles' of the PhD thesis draws upon an earlier versions published as an article 'Resisting IP overexpansion : the case of trade secret protection of non-personal data' (2022) in the journal 'International review of intellectual property and competition law (IIC)' and an article 'An alternative to data ownership : managing access to non-personal data through the commons' (2021) in the journal 'Global jurist'.