The Netherlands Commercial Court (hereafter: 'NCC') recently ruled on data ownership. The NCC consists of a chamber of the District Court of Amsterdam. More information about the NCC can be found here.
As data is a hot topic and there is a lot to write about here, we are going to publish a number of blogs on data over the next few weeks. For the next five weeks, a blog will come online every Thursday. The following topics will be covered:
In this blog, we will address the question of what data actually is and whether ownership on data can exist.
The following - general - definition of data is used in the literature:
Data is a digitally stored set of data.
Data is thus stored digitally. Storage is often done on a carrier, such as a CD, USB stick or hard disk.
Property law is limited to things. Article 3:2 of the Civil Code defines things as: " material objects susceptible to human control ". There is debate in the literature as to whether data is material and whether it is susceptible to human control. Case law so far assumes that it is not. So, from a property law point of view, there can be no ownership in data. One cannot be the owner of data in a property law sense, but one can be the owner of the carrier of the data (CD, USB stick or hard disk). After all, the carrier of the data is a material object and therefore a thing.
The fact that there can be no property right in property law to data has a number of consequences. First, you cannot revindicate data. So you cannot claim your data if a third party owns your data. However, parties can make agreements in a contract about the ownership and return of data. This is the subject of the next blog in this series.
The General Data Protection Regulation does provide a basis for natural persons to request a copy of personal data and possibly delete it. So this is akin to revindication, but still not the same thing. There will also be a separate blog online on this topic.
Because there can be no property right in property law on data, it is important to make good contractual agreements on the use of the data and on the return and removal upon termination of the agreement. This is especially important if data is shared with a third party, as data, as indicated above, is therefore not revocable. Our specialists at Team Commercial Contracting will of course be happy to help you with any issues concerning the drafting of contracts or advice on this matter.