Cameron Miranda
The question of whether data is considered property under UK law is a complex one. In 2019, a UK court ruled that information held in electronic databases is not property that can be possessed. This ruling was made in the context of a dispute between two companies, where one company withheld access to a database from the other due to unpaid fees. However, there have been proposals for new property rights that recognise an individual or entity's control over 'data objects'. These proposals aim to address the gap in the law regarding the treatment of digital assets and provide a nuanced approach to legal characterisation. While some scholars argue that data should be treated as property, others suggest that market-based solutions or alternative legal structures, such as data trusts, may be more appropriate for protecting data. The concept of data as property also raises questions about privacy and the potential commercialisation of personal data.
| Characteristics | Values |
|---|---|
| Data considered property in UK law | No |
| Data considered an asset | Yes, according to some scholars and the Law Commission |
| Data considered an object that can be possessed | No |
| Data considered a right to exclude | Yes, according to some scholars |
| Data considered a right to privacy | Yes, according to some scholars |
| Data considered a right to commercialization | Yes, according to some scholars |
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Data objects as property
In the UK, the Law Commission has proposed that a new property right be established in England and Wales that recognises an individual or entity's control over 'data objects'. This proposal is in response to the existing law on personal property rights, which does not extend to things in electronic or digital form.
The Law Commission has identified a gap in the law that merits the establishment of a new concept of 'things' – data objects – and considers that the law should recognise control over those data objects. Under the proposals, a thing would need to satisfy three criteria to qualify as a 'data object':
- It would need to be data represented in an electronic medium.
- It would need to exist independently of a person, ensuring that only items that can be identified as distinct objects can be data objects.
- It would need to be rivalrous in the sense that it is capable of being possessed and controlled, excluding others from accessing it.
This new property right would allow for a nuanced approach to the legal characterisation of new things, such as digital files, domain names, email accounts, in-game digital assets, carbon credits, cryptoassets, and non-fungible tokens (NFTs).
However, it is important to note that this proposal is still under consultation and has not yet been finalised. The recognition of data objects as a new legal category of property would have significant ramifications for the finance litigation landscape, leading to potential litigation over ownership, terms, and enforcement of rights.
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Data as an asset
While data is not considered property under UK law, it is increasingly viewed as a valuable asset by organisations. This shift in perspective is driven by the growing reliance on digital systems and the recognition that data can provide significant benefits. By treating data as an asset, organisations can make informed and strategic decisions, improve efficiency, and gain a deeper understanding of customer needs.
In the context of UK law, there have been proposals to establish a new property right that recognises an individual or entity's control over "data objects". This reform aims to address the limitations of the current legal framework, which does not extend the concept of possession to electronic or digital forms. The Law Commission has identified a gap in the law and emphasised the need for a nuanced approach to characterising new types of assets, including digital files, domain names, email accounts, and cryptoassets.
Despite data not being legally recognised as property, organisations are encouraged to align their expectations and leverage their data assets effectively. This involves understanding the types, volumes, and distribution of data, as well as the regulations governing its use. By adopting a collaborative and proactive approach to data governance, organisations can maximise the potential of their data assets and make better business decisions.
Anil Chakravarthy, CEO of Informatica, a leading provider of cloud-based data management services, emphasises the importance of treating data as a strategic asset. According to Chakravarthy, successful companies are characterised by their ability to manage data effectively across the entire enterprise. This involves building the right culture, establishing a strong technical foundation, implementing mechanisms for data handling, and fostering employee accountability for data management.
Furthermore, Chakravarthy highlights the value of collecting and correlating information from diverse systems. By integrating traditional data models with new sources, such as the Internet of Things (IoT), organisations can develop predictive analyses and optimise their operations. For example, a major oil company mentioned by Chakravarthy utilised IoT data to analyse the productivity and maintenance status of their oil wells, enabling them to identify the most profitable ventures.
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Data ownership rights
In the UK, data protection is governed by the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018. Under the UK GDPR, a Data Controller is defined as the entity that determines the purpose and means of processing personal data. Data Owners are responsible for the quality, integrity, and protection of their data domain, and work in partnership with Data Stewards and the organisation's Data Protection Officer, Chief Data Officer, and other senior officers to ensure the security and lawful processing of personal data.
While data protection laws in the UK provide individuals with rights over their personal data, the concept of data ownership as property is more complex. The UK courts have ruled that information held in electronic databases is not property that can be possessed. This distinction was made in a case where a dispute arose between YR and DBM, with YR arguing that a database should be considered a "physical object" and thus capable of possession. However, the courts rejected this argument, stating that while the physical medium and associated rights may be treated as property, the information itself has never been considered property.
The Law Commission has proposed establishing a new property right that recognises an individual or entity's control over "data objects". This proposal aims to address the gap in the law regarding digital assets and provide a nuanced approach to the legal characterisation of new types of assets. However, it is important to note that this proposal is still under consideration and has not yet been established in law.
In conclusion, while individuals have rights over their personal data in the UK, the concept of data ownership as property is not currently recognised in the same way as physical possessions or traditional forms of property. The legal system is still evolving to address the unique challenges posed by digital assets and data protection.
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Data trusts
In the UK, data is not considered tangible property and therefore cannot be possessed. However, the Law Commission has proposed a new property right that recognises an individual or entity's control over 'data objects'. This right would allow for a nuanced approach to the legal characterisation of new digital assets, such as digital files, domain names, and cryptoassets.
Data health research shows that many business executives do not fully trust their company's data, and this can impact decision-making. Data trust means having confidence in the health and accuracy of an organisation's data, which can lead to improved operations, streamlined decision-making, and innovation. To build trust in data, it is important to ensure its accuracy, completeness, and consistency.
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Data as intellectual property
In the UK, data is not considered tangible property and therefore cannot be possessed. However, it can be protected by intellectual property rights, such as database rights and copyright.
In 2019, the UK court ruled that information held in electronic databases is not property that can be possessed. This ruling was based on the argument that a database constitutes a "physical object" due to its existence in a physical form on servers. However, the court distinguished between the information itself, the physical medium on which it is recorded, and the rights associated with the information. While the physical medium and the rights are considered property, the information itself is not.
The Law Commission in England and Wales has proposed establishing a new property right that recognises an individual or entity's control over 'data objects'. This reform aims to provide a nuanced approach to the legal characterisation of new digital assets, including digital files, domain names, email accounts, and cryptoassets.
Intellectual property rights (IPR) play a crucial role in data sharing and commercial data contracts. Researchers and organisations must consider IPR when sharing data beyond the scope of their original research project to avoid copyright infringement. For example, when a researcher transcribes articles from a database, they do not own the copyright to the original material and cannot share it without breaching copyright. Similarly, when using data from surveys or interviews, it is essential to assume that the content is copyright-protected and obtain permission from the copyright holder for reproduction.
Universities often own the research data and software created by their researchers, and their policies promote the sharing of this data. However, researchers must still consider any commercial, legal, or ethical restrictions that may apply. When collecting and processing secondary data from existing sources, such as commercial databases or social media sites, it is important to remember that the collector does not own the data or have any rights to it.
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Frequently asked questions
No, data is not considered property under UK law. However, there have been proposals to establish a new property right that recognises an individual or entity's control over 'data objects'.
'Data objects' refer to digital assets such as digital files, domain names, email accounts, in-game digital assets, carbon credits, cryptoassets, and non-fungible tokens (NFTs).
Some scholars and individuals argue that data should be considered property because it has economic value and can be used as an asset or collateral for commercial exchange. Recognising data as property could also help address data inequalities and empower individuals to control how their data is used.
Treating data as property could have unintended consequences in other areas of the law, such as the law of theft. Additionally, data does not conform to traditional notions of property as it is intangible and lacks the characteristics of physical objects, such as the ability to be possessed or sold.
Not treating data as property raises concerns about privacy and data protection, particularly in the context of law enforcement practices and the potential for warrantless access to private information.
