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Legal issues of digitalisation in Europe

  • Text
  • European
  • Digital
  • Liability
  • Digitalisation
  • Ownership
  • Businesseurope
  • Noerr
Europe needs better rules for the digital revolution of the economy. Businesses want a standardised, EU-wide legal framework and room for contractual solutions when dealing with data. This emerges from a cross-European survey carried out by Noerr LLP and BusinessEurope, the European umbrella association of national industrial and employers' associations. Business leaders from companies in 20 different countries were interviewed.

Only 4%

Only 4% of respondents do not exploit the potential of big data at all. 91% of those companies who offer data business services target offers to B2B customers and 45% to B2C customers. Whereby the companies, for the most part, maintain their own platforms to generate and aggregate the data (83%), combined platforms or consortiums are used more scarcely (54%, 22%). Consortiums are almost always linked with own or combined platforms. Interoperability between different platforms seems to exist at least in half of the responding companies, which fosters userfriendliness and will enhance innovation in the long run. There are very diverse views on whether the European regulatory framework covers all aspects of data ownership and supports company business models. While 32% think that the EU legislation sufficiently regulates data ownership, 21% believe there are weaknesses. The assessment of appropriate coverage of EU legislation seems to decrease with the importance of data ownership to realise a company’s business model. The diverse views on whether the European regulatory framework covers all aspects of data ownership appear to be inversely related to how much the companies are affected by it. n=99 46% In order to realise your business model: does the European regulatory framework cover all aspects of data ownership? 24% 14% 7% 8% Not at all Slightly Moderately Very Extremely In order to encourage the free flow of and access to data the EU Commission is evaluating the creation of a new “Data Producer’s Right” for non-personal and anonymised data 4 . We asked business leaders whether this concept would solve ownership and access issues and help them realise their business model. 4 European Commission: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: “Building a European Data Economy”. 10.01.2017, p. 13. BUSINESSEUROPE 12 Legal issues of digitalisation in Europe 2017

Currently, 47% think that such a data producer’s right still needs further assessment. 31% are in favour of the idea of identifying the “data producer” as the owner or long-term user of a device and thereby grants them the right to use and disclose data. Supporters of this concept are mostly small companies with revenues below €50 million. 21% however fully oppose this approach, often because such a right would limit the flexibility for parties to define terms of management of data and agree upon them through contracts. From an investment perspective, it is crucial that businesses can use and protect the data they produce as they see fit, in order to be able to develop new products, find innovative solutions and get a return on investment, this is currently possible within existing contractual and intellectual property frameworks. In compensation for granting a “Data Producer’s Right”, the European Commission believes that data access could be permitted for specific purposes, e.g. for public interest, spe-cific purposes and FRAND terms (fair, reasonable and non-discriminatory) 5 . The overwhelming part of companies currently rely on national law provisions to claim data access (83%). Rarer basis for access are antitrust law (4%) and unfair competition rules (9%). 40% Is data access an issue to your company in order to realise your business model? 22% 18% 13% 8% Not at all Slightly Moderately Very Extremely Free flow of data To ensure the free flow of data between EU member states and their industries, the European Commission is proposing an effective and trustworthy principle of free movement of data within the EU. 5 European Commission: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: “Building a European Data Economy”. 10.01.2017, pp. 12-13. Legal issues of digitalisation in Europe 2017 13 BUSINESSEUROPE

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