From data property to data access and back again? Comparative remarks on the EU Data Act

Due to its enormous economic value, the language of ownership is often used to claim that data belong or should belong to someone. From a legal point of view, however, the qualification in terms of ownership is controversial and equivocal, because data has peculiar characters which distinguish it from other entities, whether material or immaterial. The present contribution focuses on one of the various ways through which data is collected, the so-called Internet of Things (IoT). The recent EU Data Act addresses this phenomenon with a complex and sometimes cumbersome regulatory framework. The Regulation assume that the legal status of data and the problem of its allocation can be circumvented in favour of a regulatory approach focussed on the creation of an access and management regime. However, it introduces new rights of access having a proprietary flavour, as shown by art. 4.13, according to which the use of non-personal data collected is subject to the prior conclusion of a contract. This means that without the explicit user’s consent, no data can be collected, processed or transferred to third parties. Addressing the difficulty to tackle openly the nature of data, due to the different lexicons of property in the civil law and the common law legal traditions, this paper claims that new technologies call upon jurists to take a creative effort in order to contribute to face the new challenges of our contemporary society.