Book Review: Intellectual Property in the Era of Big Data and Blockchain

This Kat has once again the pleasure to review a volume of the series on intellectual property law, edited by Prof. Jacques de Werra at the Law School of the University of Geneva [check here for the previous volume on non-traditional trade marks]. Most of the volumes in this series are accessible in open access here.

The particular volume to be reviewed, titled “Intellectual Property in the Era of Big Data and Blockchain” (ed. Jacques de Werra, Schulthess), discusses how these emerging technologies shape intellectual property law. With seven contributions, written either in English or in French, the volume offers an in-depth analysis of interrelations between law and new technologies, in a language accessible to both lawyers and technicians. The contributions themselves are the outcome of a dedicated conference, held in Geneva in February 2020 (although one chapter claims to be the outcome of the spring 2020 lockdown - which you can tell, by its length!).

The volume opens with Chapter 1, written in English, where Carlos Correa introduces the reader to the legal limbo surrounding the regulation of data. Starting from the premise that the law is lagging behind recent technological developments in the data sector, the author first gives a definition of data. He then suggests a classification of data, based on the experiences in the EU, US, Canada, and India. Chapter 1 follows by addressing the legal rights in data, primarily copyright, protection of data bases as a sui generis right in the EU, and a sui generis exclusive right on data,– a proposal circulated by the European Commission in 2017. The chapter closes with addressing the data ownership, especially regarding sensitive categories of data sets, such as individual health data.

Alain Strowel and Laura Somaini follow with Chapter 2, also written in English. Here, they discuss the regulation of non-personal data in the EU and the 2020 Data Strategy. The authors review various EU instruments and policy, directed to the public regulation of data flows in B2B relations. The chapter is built along three main lines. First, the authors suggest a classification of data regimes under EU law (recognizing that it can sometimes be hard to draw a line between various categories). They then focus on the 2018 Regulation on the Flow of Non-Personal Data, and the EU 2020 Data Strategy, all to discuss the regulation of non-personal data in the EU. Free movement of data, conclude the authors, is set to become the fifth freedom in the European Single Market.

Building on certain the reflections briefly introduced in Chapter 1, Florent Thouvenin discusses, in Chapter 3, whether Switzerland needs a property right over data. In the first part of the chapter, Thouvenin overviews the pros and cons of such property rights (e.g, property right over data to correct a market failure). According to the author, such property right would mostly bring costs, such as increasing negotiation costs, but it will not likely create better control over data for individuals. Instead, the author suggests introducing certain minor adjustments to such fields as inheritance law or family law, to adapt them to modern day challenges. Should a policy decision be taken to create a property right over data, Thouvenin advances, in the second part of the chapter, several ideas with regards to what and how should be regulated.

Chapter 4, written by Daniel Kraus and Christophe Schaub, focuses on the intersection between blockchain and intellectual property. The authors first provide a technical explanation of how blockchain functions [highly appreciated by this Kat]. They then analyse various uses of blockchain technology from the point of view of IP rights (e.g., as a protected data base, software, patents, or even trade marks). The last part of the chapter looks at how blockchain technologies may be used in IP management, including to secure digital evidence [since this Chapter was written, WIPO has launched this service, called WIPO PROOF – see The IPKat post here].

In Chapter 5, Claire Fobe explains how search tools, powered by artificial intelligence and blockchain, may help shape the legal profession. Darting [no pun intended] in and out of technical niceties, this chapter shows the processes applied in the Darts-IP data base to select and classify IP case-law. Spoiler alert for those who are worried that AI may take the place of lawyers, the author (head of legal content at Darts-IP) believes that we are still far from predicting judicial decisions through the use of AI.

Chapter 6, “Prospective reading of art. 17 of the DSM Directive”, written by Julien Cabay, is the central (and the longest) chapter of the book. Cabay meticulously unscrambles the relevant case-law of the CJEU to discuss how art. 17 will be perceived by the court. The chapter can be schematically divided into four parts: (i) setting out the context for art. 17 and addressing the general reasoning of the CJEU regarding the fair balance principle; (ii) applying the Court’s reasoning in past copyright cases to discuss issues of art. 17, including that of the nature of the article vis-à-vis the communication to the public right in Directive 2001/29/EC; (iii) considering the Polish challenge to art. 17, concluding that art. 17 will be validated by the Court in abstracto, but its concrete national implementations in the Member States might be vetoed by the Court [PermaKat Eleonora Rosati reaches a similar conclusion here]; and (iv) suggesting several recommendations for national implementations of art. 17.

In Chapter 7, Michèle Burnier discusses the recent revision of the Swiss copyright law to consider how the new provisions may be applied in the big data context. Initiated back in 2012, the revision finally entered into force in April 2020. Although the issue is not explicitly addressed in the chapter, EU lawyers will find that many Swiss novelties are actually familiar to them (including stay-down obligations for hosting providers or text and data mining exceptions).

All in all, those who are engaged into IT law, legal tech, or emerging technologies should consider acquiring this book.

Published: 2020
Format: Paperback
Extent: 293 pages
ISBN: 978-3725587780
Price: 68. 00 CHF

Available here with a special discount until March 31, 2021.