by Luis Roman Arciniega Gil
[This blog is part of a series on the pandemic. The introduction to the series can be found here.]
Two types of data enjoy freedom of movement within cyberspace networks: public data and personal data. On the one hand, at the international level, public data have been subjected to a policy of openness and spontaneous dissemination, mainly since the adoption of the G8 Open Data Charter in 2013 and the International Open Data Charter in 2015. On the other hand, personal data are generally governed by fundamental rights, namely the protection of privacy and personal data (Article 7 and 8 EU Charter of Fundamental Rights, EU-Charter). Public data are not unrelated to the guarantee of fundamental rights, especially if they are private (Lanna, 2018). Accordingly, the collection, processing and re-use of data by public or private actors is regulated by law.
In Europe, two instruments govern public and personal data: the Open data Directive (formerly Public Sector Information – PSI – Directive) and the General Data Protection Regulation (GDPR). Both aim at ensuring the protection of data as informational objects while promoting their free circulation. However, they remain silent on the legal nature of the information and data. Whether public or personal, data are characterized by the fact that they belong to someone; they have a finality and they serve a purpose. In other words, beyond the exclusive rights to which they may be subject, data are objects of common interest. They become “common goods” for the development of the whole society. This is because its informative value, as a source of knowledge and progress is at the heart of the debate (Bellanger, 2015).
This blog briefly presents the results of the research project: The governance of data as “commons”.* The analysis is based on French and, to some degree, European law, jurisprudence and doctrine. The Research is aimed at exploring the legal nature of informational data, including public and personal data, and the collective rights that guarantee the fair use of the information.
Demonstrating this, the blog will briefly examine the project’s proposed outcome, which is to recognize informational data as “common goods”. We will first focus on the social, economic and political stakes of public data and then on the relationship between private data and fundamental rights. The objective is to understand the very nature of data as circulating informational objects, while unravelling the “bundle of utilities”, determined by rights, obligations, privileges and non-rights, among other prerogatives, that allow public and personal data to be qualified as “informational commons”.
The complex legal nature of informational data and its proprietary ecosystem
In principle, data are elements of a complex physical nature that go beyond the existing legal framework in many respects. As an object, data exists before any type of qualification as public or personal; as an informational element, data is characterised by the fact that it is subject to a bundle of public and private interests that directly affect its legal status, and over which its economic potential prevails (Marchand, 2014).
In the case of public data, the law enshrines principles such as the free circulation and free use of data, which in turn affect a key element of it, namely its public ownership (Dubail, 2001). In France, it is through these principles that the law rejects any kind of fees over public data as objects of widespread interest (Belot, 2015). Economic (property) rights are particularly affected by these provisions since the consequence is the impossibility for the administration to exploit its data, the only remaining prerogative being that of authorship when this attribute of moral rights is operative. The judgment of the French Council of State of 8 February 2017 (CE, 10th – 9th ch. réunies, decision of February 8, 2017. Notrefamille.com / Département de la Vienne) confirms this position by considering that the sui generis producer’s right on databases, by the administration, cannot oppose the extraction or re-use of public data in accordance with the legal provisions.
In the case of personal data, French and European provisions are harmonised to establish a legal framework under the prism of a personalist thesis. The rights on this type of data take the form of personal rights reinforcing the fundamental rights and freedoms of users in cyberspace. These are rights of a subjective nature and powers of control by individuals over data emanating from the person. The European case law confirms this position with the Digital Rights Ireland, Google Spain and Schrems I and Schrems II rulings. Nevertheless, the dynamics of the data economy and the information market have been criticised, in particular with regard to their compatibility with the protection of privacy and personal data. In fact, the free flow of personal information aims at developing legally traded products and services. Yet, such market dynamics indirectly commodify privacy and personal data, and do not exclude the possibility of the recognition of economic rights, particularly the sui generis producer’s right over databases. Therefore, subject to the respect of the requirements related to the protection of personal data, any person can collect data and make a legal and legitimate use of it. The existence of personality rights over personal data does not exclude the existence of pecuniary attributes different from real rights.
The principles of free circulation and free use of public and personal data make the ecosystem of exclusive rights over them complex, taking the form of immaterial economic rights (intellectual property) and personality rights respectively. This raises the question of the legal nature of these informational elements and raises the hypothesis of their possible classification as “commons”.
An ancient but still valid notion of res communes in Roman law allows a first legal approach to this concept. The immaterial nature of information effectively means that data can be considered legally as common things, since data, whatever they are, are by nature non-rival and non-exclusive objects. This means that the use by one person does not diminish its quantity or make it impossible for other persons to make competing use of it or to benefit from it (Boul, 2013).
A second approach leads us to what some authors propose to classify as “informational commons” (Aigran, 2005; Vivant, 2006). In fact, the recognition of a possible ownership or property right on data is due to the application of a technique called “legal fiction”, to assert personal or property rights recognized in positive law (Xifaras, 2004). Legal fiction refers to: “an artifice of legal technique (in principle reserved for the sovereign legislator), a ‘lie of the law’ (and a benefit of the law) consisting in ‘pretending’, in supposing a fact contrary to reality, in order to produce a legal effect” (Cornu, 2004).
The latter is what was tried in France, in 2016, when the draft law for a Digital Republic proposed the recognition of an “informational common domain”. Article 8 specified as belonging to the said domain: “information, facts, ideas, principles, methods, discoveries, provided that they have been the subject of lawful public disclosure […]; works, designs, models, inventions, databases, protected by the intellectual property code, whose legal protection period, with the exception of the moral rights of the authors, has expired [as well as] information from administrative documents publicly disseminated” [emphasis added]. Discussions on the article eventually led to its abandonment. Nevertheless, it should be noted that this proposal was aimed at the fact that digital technology offers unprecedented possibilities for the dissemination and exchange of information, but not without giving rise to new phenomena of re-appropriation that can hinder its free circulation (Mazzone, 2006).
Towards a shared governance of data as digital commons?
Beyond the protection of data, the aim is to deal with its non-economic valorisation in a transversal way. The analyses carried out have made it possible to identify what part of the doctrine proposes to qualify as “commons” (Ostrom & Hess, 2007). In addition to the proposal for “informational commons”, advances in technology have also led to the emergence of a new category within which data can be integrated, namely the “digital commons”. This places the analysis in a different perspective from that of personal or property rights, as one has to consider the collective dimension that may exist over data as circulating informational objects (Bourcier & De Filippi, 2018). For part of the doctrine, the analysis of this collective dimension must be defined, in particular, in the light of collective bargaining and the social protection of the legal good in question (Casilli, 2014).
In the context of empirical evidence, the creative commons licenses show that the creation of “communities of goods” is possible through contractual techniques in which “rights of use” are favoured over “exclusive rights”. This is a key element in the identification and formulation of proposals aimed at delimiting what it is proposed to call, in French positive law for example, the “informational common domain” (Maurel, 2018). However, for some authors, it would still be necessary to consider a complete “demarketing of the commons” (Dardot & Laval, 2016; Rodotà, 2016). This is so because it is argued that the “commons” are closely linked to the full realisation of fundamental rights and public liberties, hence leading some authors to call them also as “fundamental goods” (Ferrajoli, 2010).
Considering this, intellectual property rights, mainly copyright and sui generis rights, must be analysed in balance with other fundamental rights. This includes freedom of expression and communication of ideas (Article 11 of the French Declaration of the Rights of Man and of the Citizen of 1789, as well as in Articles 19 and 27, paragraph 1, of the Universal Declaration of Human Rights, 15. 3 of the International Covenant on Economic, Social and Cultural Rights, 19.2 of the International Covenant on Civil and Political Rights, as well as 10.1 of the European Convention on Human Rights.), as well as scientific expression which is also recognised as a freedom that can be materialised by any medium (Blaizot-Hazard, 2016).
In France, this “fundamental” dimension of intellectual property vis-à-vis the interests of the public has been recognised by the Constitutional Council in its Decision No. 2004-499 DC of July 29, 2004. It declared that “[there is] an objective of general interest that attaches to the safeguarding of intellectual property and cultural creation”. At the European level, it is also accepted that: “the right to property and the freedom to pursue an economic activity […] do not constitute absolute prerogatives, but must be viewed in relation to their social function. […] [T]he[ir] exercise […] may be restricted, provided that those restrictions in fact correspond to objectives of general interest […] and that they do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed […]” (Judgment of the General Court (Third Chamber) of 2 March 2010. Arcelor SA v European Parliament and Council of the European Union).
The examination of this social (non-market) dimension can be found abundantly within the doctrine. For instance, authors from the 1800s (Proudhon, 1833; Commons, 1893; Renouard, 1898) and 1900s (Hohfeld, 1913; Duguit, 1912; Duguit, 1913; Duguit, 1930) lay the foundations for understanding the so-called “dismemberment of property” and its relationship to the “goods domain”. More recently, Elinor Ostrom (1990; Schlager & Ostrom, 1992; Hess & Ostrom, 2007), Stefano Rodotà (2007; 2016) and Luigi Ferrajoli (2010; Sozio, 2015/2016) provide the pillars for the construction of the modern theory of the “commons”. The major contributions of these authors allow to understand the “bundle of rights” and “bundle of utilities” that could be directly related to the fundamental value of the “commons”. Finally, several contemporary authors help to understand the complex transition from data as a “common thing” to data as an “informational commons” and the issues surrounding it (Catala, 1998; Galloux, 1994; Mallet-Poujol, 1997; Chardeaux, 2006; Xifaras, 2010; Rochfeld, 2015; Dusollier, 2015; Maurel, 2017).
The most recent Data Governance Act seems to be moving in this direction of a social, shared and not restrictively market value of digital informative data. In particular, it is proposed to dimension data in the practical model of cooperatives (art. 9) and personal data collection for altruistic purposes (art. 2). These two figures can be seen as a promising as data cooperatives fundamentally address the problem of collective bargaining, while altruistic purpose is presented as the way to take data out of the realm of things of commerce or heritage. Put another way, while one of the strongest arguments in favour of enshrining the “commons” has been the absence of collective bargaining and the demarketing of the legal good, it would be now possible to create communities of goods by setting up data cooperatives and expressly renouncing exclusive rights in favour of shared and altruistic purposes through user rights.
Only time will tell whether positive law will be able to keep pace with emerging dynamics, particularly with regard to the possible uses of data as circulating informational objects. For now, the “commons” appear as a promising figure capable of proposing a new way of governance for the equitable use of informational data. They appear as a tertium genus capable of overcoming the classical dichotomy between the public and private goods. This last point is the door open to explore new forms of collective action, through the implementation of new collection purposes and operational models. This is particularly important because the “commons” allow for greater participation of the public in the production of new legal assets (Napoli, 2014). Beyond the public and the private, there is then a third way: the “commons”.
* This project was funded by the National Council of Science and Technology of Mexico (CONACYT) and was hosted at the University of Lille, France, in partnership with the Centre for European Research on Administration, Politics and Society (CERAPS – UMR 8026 CNRS).
Luis Roman Arciniega Gil is a Lecturer and researcher at ESPAS-ESTICE, Université Catholique de Lille. Associate researcher, Univ. Lille, CNRS, UMR 8026 – CERAPS – Centre d’Études et de Recherches Administratives Politiques et Sociales, F-59000 Lille, France.