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An Intellectual Property Look

at GDPR
Published on December 7, 2017

Neguiel Hicks 17 articles Follow

Privacy Attorney

Controversy alert. This article lays out how intellectual property rights
are created and affected by the General Data Protection Regulation
(GDPR) between the three parties; Controller, Processor, and Data
Subject. And let's face it big data is the new oil, whoever controls data
as a resource controls a key economic force, which is the reason
ownership rights are so contested.

Comments and questions are appreciated!

Does GDPR create intellectual property rights for the Data

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Subject
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Subject 1

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In a way, it does.

Under Article 1(1) GDPR is limited to personal data of “natural

persons” and specifically exempting “legal persons” in Recital 14.
Taken together it is apparent GDPR applies to data people produce
when interacting with technology. Personal data is defined in Article
4(1) in a manner indicating there are two categories of data; there is
data that identifies or can be used to identify a data subject and all the
other data collected like date and time stamps, geolocation (to some
extent), and profile information. Support for this two category division
is found in the exemption from anonymized data found in Recital 26.
Under this exemption, if the first data category can be de-coupled from
the remaining data, that remainder is exempt from GDPR. Linking that
concept with the exemption for processing by a natural person for “a
purely personal or household activity” found in Article 2(2)(c), and you
can see this regulation applies to commercial activities or monetizing
data produced by people.

To sum up, we have the formation of a test!

Now that we know when GDPR applies let’s look at the data subject
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rights in Articles 12-23; under Articles 12-23 the regulation lays out

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rights in Articles 12-23; under Articles 12-23 the regulation lays out
1
data subject rights to know who is collecting their data atHome
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collected (Art.12-13), processing purpose (Art. 15), data categories

(Art. 15), onward transfers to third parties (Art. 15), retention period
(Art. 15), correction (Art. 16), erasure (Art. 17), and restriction on
processing (Art. 18). Taken together the data subject is in a position to
negotiate terms under which you can use the data collected. And this is
very similar to a right in work defined under U.S. copyright as; “A
form of protection . . . for "original works of authorship”, . . .
"Copyright" literally means the right to copy but has come to mean that
body of exclusive rights granted by law to copyright owners for
protection of their work.” See the parallels there? Under GDPR there is
an analogy that data collected can be considered a data subject’s
“original work” based on the protection rights found in Articles 12-23.

Does GDPR grant intellectual property rights to the controller?

In a way it does.

Under Article 4(7) a controller is any natural or legal person that

determines the purposes according to Article 6(1) and means of
processing personal data. Note that processing is defined to include
nearly all data handling in Article 4(2). When it comes to engaging a
processor, the controller passes their lawful purpose along with a series
of data use restrictions as defined in the contractual terms.

And this poses an interesting intellectual property conflict when it

comes to advertising and behavioral profiling. On the one side, you
have the advertising service providers who create and set cookies,
aggregate data, redirect advertisements, and provide campaign
reporting metrics who view the data collected as their intellectual
property gathered by their proprietary software. On the other hand, you
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have controllers bound by collection terms set with the data subject and

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the specified lawful basis that view the data collected as restricted to 1

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processing by those terms. From the controller perspective this isMymore
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of a “work-for-hire” relationship with the processor in that they are

saying, “yes, you are the artist. You own the paint, the canvas, and the
painting until I pay you to transfer that ownership right to me.”

Conclusion

GDPR presents many head-scratching moments, even for the legal

community. Pulling it all together GDPR's rights structure puts
advertising networks and their clients in a position to negotiate
contracts in a clear and concise way that addresses both of their needs
and interests in this data.

#GDPR #privacy #intellectualproperty #copyright #advertising

#adexchanger #exchangewire

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Published by
Neguiel Hicks 17 articles Follow
Privacy Attorney
Published • 4y

#GDPR #privacy #intellectualproperty #copyright #advertising #adexchanger

#exchangewire

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