University:
University College London
Course:
LAWS0023 | Commercial Law
Academic year:

2024
Views:

126

Pages:

3
Author:

Nam B.

Protecting EO-Derived Products And Services Through Technical Evidence And Contracts Presented by: Chris Reed (Professor of Electronic Commerce Law) Date: November 08, 2021 Ownership - IP law confers ownership of artificial constructs: 1. Creative works (copyright) 2. Inventions (patents) 3. Databases (database right, where it exists) - EO data isn't any of these without further work 1. But is that work really necessary? 2. Do you need to own something to exploit it? What If Your Data Can't Be Owned?    You can still exploit it if you control access to it  Without access, others can't use the data  And thus cannot incorporate it into products and services Others have no right of access  Unless granted by contract  Or ordered by a court, e.g. under competition law So you can use contracts to exploit your data Two Problems With Contracts - They only bind the parties, not outsiders  So you need to control further transfers of the data (see later)  And you might be able to exercise further control by using the law of confidence (also see later) - You might have fewer rights if the other party becomes insolvent  Relevant if the data has long-term value Confidentiality Clauses  Your EO data will almost certainly be confidential to start with  Confidentiality is lost once others have access to it:   UNLESS they accept access on terms that it is confidential  Thus the need for a suitable confidentiality clause Remedies against breach of this term: 1. Damages 2. Injunctions 3. Orders to deliver up data Controlling Third Party Use Of Data - First user must be obliged to arrange this: 1. Disclosure/secondary access under a contract  Ideally data 'owner' is also a party 2. Disclosure access on terms that data is confidential 3. Compensation/indemnity if first user fails in these obligations - May be important to prove that data originates from 'owner':  Requires evidence (from whom?) 1. Logs of access 2. Watermarking 3. Private blockchain distribution? Possible Contractual Structures 1. Bilateral  Each data user has a contract with the data 'owner'  Hard to achieve as numbers grow  Managing relationships between users is complex  How much controlled by 'data owner', how much left to contracts between users? 2. Multilateral  Usually via some kind of rulebook for data sharing   Each user contracts with the data 'owner' and with all other users Harder to devise, easier to administer So is IP irrelevant? - No, it does a number of useful things: 1. Backstop if your data comes into the hands of someone who has no contract 2. Gives perceived value (and thus perhaps increased monetary value) to your data 3. Important for financing/corporate valuations - property is an asset, contractual expectations carry less weight - Real time vs historical data  Real time data is ideal for contractual protection   And is least likely to have IP protection Historical datasets may have IP protection  Contracts can enhance this  Extended rights, easier remedies