Achieve eSignature Legitimacy for Assignment of Intellectual Property in European Union

How to eSign a document: e-signature legitimacy for Assignment of intellectual property in European Union

so uh good afternoon everyone um i'm very glad to well virtually see you obviously not see you in real life but to virtually see you as one does uh in this year um and especially also to see so many of you on a session on intellectual property rights and open data on a legal topic which is uh well it's not that common that legal topics generate a lot of visibility and a lot of focus so i'm very happy to see that there are a lot of exceptions to this rule um you are right to be here though um because there are a lot of interesting um uh a lot of interesting topics a lot of interesting evolutions going on um right now and in the session um which will be split into two parts in the session the idea is to um first of all to summarize some of the main trends some of the main evolutions and we'll also have an an open um panel discussion so um in terms of agenda let me see there we go that should be working in terms of agenda so i'll start off uh with a short introduction to the the main topics that i want to discuss the main context policy context and legal context what's actually going on and why are we talking about intellectual property rights right now even though intellectual property rights are not not buzzing a hot topic of themselves right now i want to talk about two things in particular first of all uh a quick um presentation on the discussion on uh the open data directive so the innovations that it's it's brought on board there and that's the open data directive for the purposes of this presentation is kind of an appetizer for the second and and bigger meta topic i would say of the presentation which is um the shift that we're seeing right now not just um in the market but also increasingly in public sector and data economy in general and society in general from static data sharing to data as a service what that actually means what it entails also from an intellectual property rights perspective to have new possibilities do we have new constraints what you have to look out for so really we have kind of two big themes that will run through the presentations that we have ready here today first is the the the data economy the emergence of the data economy itself the whole policy agenda behind it the whole um narrative that data sharing is a good thing and we need more of it as a european economy to be able to compete in a global market and the second part of it is uh the the resulting shift to um dynamic flexible live real-time data sharing those presentations that we will have in the first hour i'll try to leave some margin in both presentations for questions afterwards on topics themselves we'll have those presentations in the first after hour and then afterwards we'll have a um an interactive more dynamic section of the uh presentation itself which uh for which we've invited a couple of a very uh skilled and very knowledgeable uh panelists um that would be uh ms annette uh hilupant from uh wic consulting amazon sales from geonovam uh unfortunately we also had invited a panelist from the jrc but she was unable to attend since as some of you might be aware the api days conference in paris is also ongoing and um overlapping nonetheless i'm sure we'll be able to have an interesting panel discussion with the people who are present um and uh you're also encouraged um after the the presentations in the first hour during the panel discussion to raise your own questions because the idea obviously with this being a training session is that we answer your questions and not that we project our questions and our answers uh onto you so uh do feel free to um raise questions um after the presentations or at any time during the panel discussions you can do that um by unmuting and asking it directly i will also keep an eye out for questions that pop up in the chat after the presentations and during the panel discussions for those of you who would prefer not to speak up well uh while recording as was already mentioned you will get a copy of the slide so there's well feel free to make screenshots if you like but there's no burning need to do so um and i've also provided the link on the slides themselves to uh one of the discussion documents that was prepared in the context of the open data academy um discussion paper on intellectual property rights in the context of dynamic data sharing so one of the topics that was the uh input for the session uh today okay um so having said that let's maybe briefly pause the thing about what is actually the context why are we talking about this and the reason why it's interesting to talk about intellectual property rights and dynamic data sharing right now is all about how the data economy is changing both in the market and in european policies in european legislation because there is a um thankfully as an and the way it's supposed to happen this is one of the situations where the legislation is very well uh aligned with um market trends and market uh shifts itself what you see in the market itself is that increasingly everything is made available as a service um that's you know the cloud paradigm started introducing that shift 10 years ago and nowadays everything has to be as a service software as a service was arguably where it started infrastructure as a service platform as a service nowadays also data as a service mobility as a service anything uh can and and ing to some people should be available uh as a service in tandem with that we also see that there is increasingly a possibility to capture higher volumes of data more granular data better quality data and we can do more interesting things with that i'm sure many of us uh frequently watch the data being captured for instance in the context of covet 19 crisis you know where are there infections how is hospital occupations things like that that are very relevant and also a good example of why data sharing becomes important and what the role of the eu can be even on that point the european union does bundle information on the health status in different member states and uses it to provide guidance on you know where the risks are and moving across borders and what specific measures um apply obviously that's a negative example but positive examples of societal impacts can be given as well things like keeping track of pollution data that will help you track on whether we are meeting our environmental targets what still needs to be tightened up all of those are cases where more and more data is being collected supported by increasing digitization of the market the penetration of the internet of things and so forth the ability to collect more data and to share it more freely we also see more that more data is available and the more dynamically is accepted as accessible more you can get access to real life high quality data the more innovation you can get more easily you can disseminate knowledge and information to citizens to companies to public institutions so this is hugely beneficial from a societal perspective creates economic growth opportunities and results in better policy making the overall conclusion the overall conviction is data sharing is good for everyone for the european data economy but also for citizens and for public administrations that's essentially the conviction that underpins the european strategy for data as a policy framework for data sharing within the european union consideration that society will work better if more data can be shared between relevant stakeholders of course with uh the uh with full respect for european values european standards and european legal frameworks which includes obviously also uh intellectual uh property rights and we've had a lot of um legislative initiatives recently as a lawyer it's very exciting to watch how quickly that landscape is changing obviously we've had the open data directive in which we'll talk a little bit more uh in the session but there's also a bunch of um upcoming and emerging legislation that will affect data policies and data sharing um possibilities in the european market the data governance act as a fascinating new framework for altruistic data sharing that digital services act that will govern how intermediary platforms are expected to act digital market acts that aims to address some of the imbalances that you have with dominant platform operators with the expected data act which among other points seems to underpin the fairness of data sharing and support a reasonable contractual framework we have an ongoing evaluation of the database directive which might result in some overhauls it's still to be seen how what will come of that so this isn't something that's just happening in society and this isn't something for which uh interesting policies have been haven't written up it's also something that's actually reflected in legislation so it's important to to keep close track of how the legislation changes and what the impacts are going to be and this particular session we want to look in particular what the impact is on intellectual property rights now as a first topic in this in the presentation sessions i just want to spend some time on the open data directive um most of you or at least many of you i assume will be familiar already with the open data directive and and how it works um but especially as a i guess you can think of it from our perspective as an appetizer for the second theme which is more about um data as a service and how that affects intellectual property rights here i want to talk about the role of open data of the open data directive in uh in that general trend uh how does the open data directive support the data as a service data shift and how does it approach uh challenges until in relation to intellectual property rights so i'll try to be as brief as i can on the open data directive there's a lot of ground that can be covered well i'll try to be uh try to be a little bit modest because not everything is relevant to intellectual property rights but it's important to get a grasp of how the open data directive works because it is one of the instruments that most emphatically and most drastically underpins dynamic data sharing in the european union today so um the open data directives directive in 2019 on open data and reuse of public sector information which i guess most of you will be aware is a recast and a modernization of the existing psi legal framework so we've had for a long time already had legislation in the european union on public sector information documents information held by public administrations by the public sector and on the principle that this data can be made available to citizens and to private administration private companies for commercial and non-commercial use that's been a long-standing conviction that data sharing and that making available governmental information which was taxpayer funded to citizens and uh to businesses that that is a beneficial uh thing already so we've had that legislation in place since 2003 it's been modernized already and this is the most the open data directive is the most uh recent uh recast of that and it's interesting to see sort of just what the general logic is what the general flow is between each of the recast each of the evaluations and each of the modernizations the general trends that you see and i'll pick up on a lot more details later on uh and and the further presentation of the um of the open data directive is that the uh scope of what falls within the the reach of the directives is extended more types of reuse are permitted so that basically more data should be made available uh in more situations we also see that the um directive becomes progressively more prescriptive on how data sharing should occur what kind of practical modalities should be supported so that's not just about licensing modalities about transparency towards aspiring reusers non-discrimination banning exclusivity arrangements making sure that licensing conditions if any are fair regulating the pricing that can be applied when sharing public sector information all of those points increasingly become a little bit more detailed and the most recent version and talk a lot more about that later on as focusing on a push towards dynamic data sharing basically data as a service as we're approaching it in this particular presentation the general idea is always that data sharing from the public sector should be more free more open more conducive to innovation and more conducive to encouraging enabling innovation and competition in the european data economy which is also why it now got the um objectively sexier name of an open data directive rather than just calling it the next public sector information directive psi three which would also uh have been valid um so it was adopted in 2019 had to be implemented uh by the 16th of july 2021 sorry there's a one missing on the slides 2021. member states were required to implement this legislation already and to notify the commission i'll i'll revert to that uh in any moment so this is the the the main um legal framework that encourages member states or requires member states to move towards in a dynamic data sharing model so how does it do that how does it innovate um i'll try to be a little bit brief here because there are a lot of things that you can point out as being interesting but i'll try to focus on the elements that are relevant to the ipr discussion so one of the biggest innovations arguably the biggest one is that the open data directive focuses specifically on a high value data set so-called high value data sets which basically is described as documents that create important benefits for society environment and the economy to be reused so this is basically the elements where the european legislature the data sets where the european legislature has said this is particularly impactful we have to make sure um here that this data becomes available to as many parties as possible under uh as easily on these easily accessible and dynamic terms as is realistically feasible specific categories of of uh high value data sets um are mentioned in annex so i've listed them here and included a couple of examples that i won't go into now but they include geographic information earth observation meteorological data statistics company data like business registers company ownership and mobility data including uh road signage all of those kinds of data sets which are not maybe as intuitively exciting but all of which um have broad availability in a lot of member states and all of which offer a lot of direct benefits uh to the social goals so these are data sets that are listed in uh the uh open data directive and which can be expanded also through by the legislator so this is an a set of data that can be amended by a delegated act by the european commission itself to incorporate new types of data that might be extremely impactful i would imagine you know if if this directive had been adopted two years later that for instance epidemiological data might be included in in that high value data set um so this is the kind of of of information that is included and the reason on the the method why this data how these these data sets are targeted in particular so the specific rules created for these high value data sets which are not universally applicable to all kinds of public selector information is that that data has to be available uh free of charge and machine readable formats through apis and where relevant as bulk downloads through the use of application programmers interfaces making this information available uh through dynamic services upon request is uh the main part where the dynamic and the flexible element comes in here so the idea here is very much that you don't just get to download a csv file or an excel file or a static file itself but that you actually are able to access specific interfaces that allow you to integrate this information this kind of data easily into a specific software package or in a specific service or in a specific and a specific product even so the goal is to make sure that that data is available easily and flexibly there are some exceptions to that principle which i i won't go into here which mainly reflects uh cases where um free distribution fully free distribution without any kind of compensation would have unreasonable negative impacts um but the general principle is that these kinds of information should be freely available i see there's a question in the chat on the questions that open data raises on business and research competitive advantages i'll look a little bit at the the research um approach and the open data directive um later on and then if there's a specific question i guess we can tackle that later on on um competition points there's another comment i see in the chat already that business registries are are very important um especially because there's a market behind that i'll wrap up the the the presentation first but i have a lot to say on that particular issue myself the the bottom line is that i agree with that but um there is there are some sensitive politics behind it let me focus first on what is in the open data directive and i'll get to the questions um as soon as we're done with that part um scoping of the open data directive is also extended so explicitly libraries including university libraries museums and archives are entered into the scope of the open data directive and also public undertakings which is another relevant um very relevant extension of the the scope of the open data directive public undertakings are basically all of those gray area situations where a company is not entirely a public sector body but nonetheless is under substantial control by the government or by a public administration because the public public administrations provide most of the funding or have control over the management boards or have some other way to directly or indirectly influence how a company is managed the examples given here i think are pretty intuitively recognizable water companies energy transportation rail air carriers postal services all of those might be fully or entirely privatized but a lot of member states you will have stakeholders there that are extremely heavily subsidized or otherwise under governmental control so those cases um those uh documents held by those kinds of undertakings are uh brought into the remit of the open data directive as well which is important because some of that information obviously is extremely valuable and ruling that as being unilaterally out of scope of the open data directive very much limits the impact of the directive also for high value data sets because a lot of high value data sets are held precisely by public undertakings there's also an extension of the scope and this begins to touch on the question that was raised in the chat on research data that's results from public funding it's actually kind of a comparable a comparable issue a comparable topic that i mentioned earlier part of the whole thinking of public sector information legislation is that this information is funded through taxpayer money and aims to serve the public good that's why public sector money by taxpayer money is spent on it because of this aims to achieve um public good if that is done then arguably the data should also be freely available not necessarily to all taxpayers everything that the government does fundamentally is taxpayer-funded but at any rate there's a stronger argument to be made that information like that should not be hoarded or at least that there's also societal benefit and making that data more freely available and allowing more parties to benefit from that and that's especially true for uh publicly funded research you and the member states fund a lot of research sensibly creates a lot of benefits for private companies but also for citizens for innovation for the european economy as a whole but it's kind of a shame if you allow that kind of information publicly funded research to stay private within the organizations that originally generated it because that limits what will be done with it and how much you can build on that so on that point the uh open data directive requires member states to implement open access policies integrate open by default principles fair principles to make sure that research programs include this kind of data sharing by default those of you might participate in european funded research know this already eu has already had open access policies and the ryzen 2020 program and also in horizon europe right now which means that anything that the eu funds in principle must be openly available if you want to keep data close for instance because there are data protection problems uh then you have to justify that but the open by default as a baseline requirement and that's an example of a policy where research data is required or at least very much encouraged to be openly available rules on charging are also tightened up in the open data directive and that's a very interesting one because the principle has always been that you can only charge at most a marginal cost there's always been an encouragement to make data available as cheaply as possible and in a digitized society marginal cost either is zero or at least always trends towards zero marginal cost is just you know the cost of making and disseminating an additional copy and a digital environment where you can easily copy any kind of data and send it virtually for free the marginal cost is always very close to zero the open data directive is very explicit on that point and says in a free reuse as the basic principles and for principle when data has to be made available for reuse you cannot charge for that you are allowed to apply some marginal cost specifically for reproduction provision and dissemination of documents has to be justified you have to explain why a marginal cost applied for reproduction and for providing and disseminating documents which is not easy to do in an electronic context if you already have data in a digital format then making it available for reuse basically should have a marginal cost that is either literally zero or at least very very close to zero there are some exceptions to that uh for instance for anonymization and protect protection of commercially confidential information if you need to anonymize information or edit out some sensitive components then that is something that you can apply a marginal cost for cannot be part of your business model cannot be a part of the profit model so to speak it's no profit model is supposed to apply there but that at least is a cost that you can uh charge uh onwards um there are also some some narrowly defined exceptions for public administrations that require on dissemination that require uh funding from uh making information available to basically be able to fund themselves there's also broader carve out for libraries uh museums and archives and again for um uh public undertakings uh who may um uh may not be required to make information available uh for free so that is a is a bit of a nuance to that general principle the general push though is very much that information should be made available for free wherever possible there also and that's where i'll wrap up the the the open data directive presentation section um there's also a much stronger push generally towards providing real-time data and apis so making data dynamically available through application programmer interfaces through dynamically accessible services upon request that's already mandatory for the high value data sets that i mentioned earlier but more generally the open data directive also has a principle that there's an obligation to provide information via apis for dynamic data which has a specific definition i've listed on the slides here it's basically any kind of documents that are frequently or frequently updated or updated in real time basically if data is constantly changing uh or in flux because of this volatile rapidly obsolescence for instance things like traffic information which changes all the time that's the kind of information that can be collected in real time that is updated frequently and for which uh a lot a lot of the value stems precisely from the fact that it's up to date getting historic traffic data is interesting for research purposes but to build really valuable applications you need information that's as accurate and up-to-date as possible for those kinds of dynamic data including most types of sensor capture data the open open data directive has the principle that public sector bodies and public undertakings have to make dynamic data available immediately after collection via suitable apis can also make it available if that's rel download but there is in principle and a push towards apis towards data as a service basically um the open data also has some interesting points to make on how licensing should occur uh where licenses are used so you are not required as a member stater as a public administration you're not required to apply legal conditions and to implement legal agreements on reviews reuse of your information you are allowed to make information available fully openly without any kind of legal constraints it's not very commonly done but in some member states that's that's uh but that approach is occasionally favored where public administrations basically say i have data i will put it on my website and you can have it and you can do what you want with it i don't want any kind of formal agreement with it obviously you need to respect the law whichever the laws that applies to you but i'm not going to have any any explicit kind of license agreement the open data directive doesn't require licensing agreements um to be applied but if you do member states are encouraged to apply standard licenses so that you don't have to do your legal homework on a case-by-case basis also important from an intellectual property rights perspective that you have some clarity on the kind of frameworks that are out there there's also an obligation for those licensing practices licensing modalities to not impose conditions that are really necessary on the basis of public interest they have to be transparent it has to be proportionate it has to be objective if you want to impose both specific restrictions for instance on uh permissible use there member states are also encouraged to implement some practical arrangements so facilitating document searching through portals things and things like that by publishing metadata as well to make it more easy to um to read and interpret data and to integrate it into a specific applications and to provide portal sites so the the the general trend the general narrative here is that the open data directive requires member states to make more information uh available and to make it more dynamically available the fact that they are pushed towards an api based model not for all types of data but at least for the more high value the more impactful types of services is important that encouraging a kind of a mind shift for member states and making sure that they consider you know whenever they have information whenever they have data resources that they can consider how can we make the how can we allow the biggest value creation on that not necessarily you know how can we integrate on a one-to-one basis and establish mature business relationships with a select field of with a closed field of privileged stakeholders really to say how can we open this up and to make sure that citizens and companies and other public administrations can create more uh benefits and create more advantages on this so that's a big part of the the red thread of the the open data directive um member states have had to implement it by july of this year um there's an overview available maintained by the european commission on implementation measures so existing or new psi legislation has been implemented a couple of member states well 12 states which is quite a lot um have aligned their legal framework for public sector information reuse and access the documents so um transparency of of the public sector which is a topic that's not harmonized at the european level some member states roll them together so measures have been taken in most of the member states uh however there has been an announcement on 30th of september that the commission opened infringement procedure against 19 member states who failed to notify the european commission which in some cases is just a matter of as i understand it of paperwork that the modifications have been implemented but not notified to the member states in some cases also the measures have uh been insufficient to comply with the requirements of the or are potentially insufficient to comply with the requirements of the open data directive so um the the link with intellectual property rights and here's where i kind of want to start making the bridge to the um uh to the uh the second topic the the the dynamic data and the the data as a service part um the open data directive as such doesn't contain any exceptions to intellectual property rights so no copyrights are declared and valid you don't get exceptions to copyright or to database rights in fact it explicitly states in a couple of occasions that intellectual property rights of third parties are not affected by the directive and that documents for which third parties hold intellectual property rights are not forced under the remit of the open data directive doesn't mean that you're not allowed to do anything on an international national public sector information legislation for those types of documents um and the the flemish region and belgium this legislation has been amended in a more flexible way and basically says that reuse still has to be permitted if it's compatible with third-party intellectual property rights intentionally saying you know even if a third party does hold intellectual property rights we get that we don't have to make it accessible under the open data directive but nonetheless reuse is encouraged unless it would violate those third-party rights to permit reuse so you can take a more broad perspective on on open data reuse modalities so there's no explicit exceptions no explicit carve outs from intellectual property legislation and any part of the open data directive but obviously it is very intrusive and impactful or aims to be very impactful on the practical modalities behind open data sharing uh for a psi there is a greater push for openness expansion of the scope more emphasis on uh fairness and more emphasis on um flexibility for uh reuses that's what i wanted to say about the open data directive i'm going to quickly cast an eye on some of the questions and some of the comments that have been made before i start on the the second part of the presentation so um there uh so there has been a question raised i mentioned already earlier uh the the challenges that open data raises on business and research competitive advantages um i i slightly touched upon it with the the publicly funded research provisions um it is challenging i don't know if that's the the the idea be behind the question uh the risk is indeed that private uh organizations might decide not to accept public funding because it's precisely because it brings them within the remit of public access provisions and it requires them to share their data on their conditions that they might otherwise not like so that is a potential a potential challenge a potential business impact but generally the the perception of the open data directive is that the net impact would be positive it can create the an ecosystem where uh publicly funded research is more broadly available for reuse that would be considered beneficial um i mentioned already i'll keep some of the open debates for the the second interactive session so i'll talk some of these questions um i already saw the commented briefly on the the issue that business registry data is indeed very important this all it's an important topic also because it touches on a lot of other topics we also have legislation the iris regulation on identification of persons and identification of legal entities very difficult to do that if you don't have more easy access to uh to company information and to company data and from a lot of member states still struggle with that in the sense that they only make company data available on a very limited scale or for a very high cost so that is indeed a challenging one there's a fantastic question i want to discuss about the geopolitical context i'm going to park that but i'm going to write that down because i definitely want to spend some time on that during the panel discussions but the geopolitical context and indeed the question whether the eu isn't weakening itself by handing out the crown jewels does that is the criticism that that you could uh that you could levy against this this kind of initiative that's a very interesting one i am going to note that down so please don't forget about it we will come back to an on the panel session that was kind of the the more legalistic appetizer so um for those of you who got bored because this is too formal formally legal for you it does get better um the second topic that i wanted to present before going to the panel debate is the shift from static data sharing to apis obviously and i'll touch on that already in the context of the open data directive because at least the way i read it it's one of the more interesting and one more fascinating shifts in public policy so um this also for those of you had the opportunity of reading the discussion paper that i linked on the first slide this is also uh a something that's happening in society in general this is not a public sector information topic this is not even an open data topic increasingly now everything is available as a service the x as a service whatever you want is available as a service you can buy a car as a service even it's not just mobility as a service anymore where you can just pay a fixed model to be able to skip from from to be able to access um buses and trains and trams that's expanded to uh being able to to temporarily rent cars for as long as you need them and get rid of them when you want it's it's it's a very fascinating shift and if you look at it in the digital context specifically for data but for any type of digital content if you're old enough you'll remember how this model has evolved don't have to be very old probably if you're over 35ish you remember that traditionally you used to buy things with a media carrier you know you bought a floppy disk or later on a cd-rom or a dvd um and the model was the idea the the the sales pitch that you got was that very much that you own something you bought something music or a movie or software you got a physical object you actually had to go to a store for that and then you owned it and you could resell it and you could do whatever you want with it there's some nuances there but that was the sales pitch when the internet became quicker and more efficient model evolved was possible to buy a download instead so you got no more physical item you just download it again software or music or a dvd or raw data from the internet you purchase a little precious license with it and your model you know wouldn't traditionally consider that as ownership anymore you simply said look i'm a licensee i'm a holder of a license to disk this digital content the more recent iteration is the move to a service you don't buy a static piece of software anymore you buy a subscription to a specific software you're an amazon subscriber you're on a microsoft subscriber you're an apple subscriber you're a google subscriber subscriber all of those give you access to a service as long as you pay for it same thing you know if you're spotify subscriber that's where your music uh comes from netflix for your movies all of these things you now buy under a subscription model the legal model behind that so i've i've put it sort of in hard columns on the slide here saying that you want to go from ownership to license and subscription it's not that black and white um you never when you bought your copy of windows 95 on floppy disks if you remember that um that that actually did exist for a short time that never worked but it did exist um obviously you didn't own um intellectual property rights into windows you bought a license as well you had material ownership of the physical carrier of the floppy disks related the cd or the dvd and you still had a license so it's not like we went from a heart ownership case to a hard license case there was more emphasis away from traditional ownership uh to licensing that's important for the intellectual property rights perspective as well i'll get back to that in a moment same thing with a subscription um yes it is presented to you as a subscription as a service agreement that you sign up to but still if you get intellect intellectually protected content the copyright to that didn't magically disappear and you still get a license to use the software to look at the video to listen to the music so it's it's the the sales pitch the market pitch that you get isn't identical to the legal model behind it but it is interesting to see that you get a shift away from ownership models to ipr license models to a more service oriented model it has implications as well and you see also that this is a trend the the access to information that there's more of an emphasis on access and usage rights and less of an emphasis on ownership and on licensing you see that in various sets of legislation as well obviously the open data directive that i've already you know i said enough about that already the whole inclusion of of apis and the data as a service and the emphasis on high value data sets that's one example but you see this um preference for uh data access and usage models you see that also in other legal instruments i've mentioned a couple of of them on the slides just um to show that this is a broader trend that this this attention of this legislator to dynamic data into dynamic data access to the use of apis even this isn't something that was invented just for the psi context this is something that's that more broadly affects european data policies the banking context you have the payment services directive to the psd2 directive that requires banks and financial institutions to make certain account data available via apis to third-party payment service providers and account information service providers that's precisely to enable the app economy and to make a harder split between traditional banking services and all of the applications and services that can be built around that there are obviously safeguards around that your your account information gut doesn't become open data and doesn't get thrown on the streets there's requirements for authentication for gathering consent for evidence for showing your compliance with that it's not exactly a lightweight framework but it is a framework that emphasizes the importance of of data sharing enough dynamic data the energy legal framework and specifically the electricity legislation has also been amended to that point we all know uh we will need to move at some point whether we like it or not to smart metering into smart grids smart networks that will be necessary for the decarbonization of society and for innovating smart electricity management that also means that we as consumers need to have smart metering systems in our home and to be able to use those to the fullest uh we need the data on those systems to be not open to everybody but at least there needs to be a model behind that to share that data to make it available via apis to make it available via services so that you can take your smartphone and connect that to your smart metering system and determine whether your car should be charging right now or whether it should be decharging you can keep an eye on whether your solar panels are going to be used to consume electricity now or whether you want to charge it in your smart battery station all of these kinds of things where you want to analyze manage your electricity responsibly hopefully at some point fully automated because i don't think many of us will have the appetite for that but all of it will require data sharing and api so that's another example of legal frameworks that focus very much on enabling dynamic data access data as a service the automotive industry has known this for quite a long time already vehicle repair and maintenance information i mean we all know the sales pitch and for most of us we've experienced it already if you have a car that's not too old a car is essentially a very big computer with wheels under it um it has a lot of sensors in it collects a lot of information a lot of smart and useful information but if your car manufacturer is and the the the authorized dealers are the only ones who can get access to that information that's not good that's not good for innovation that's not good for competition if nobody can check anymore what the error codes of your car mean without paying a license fee that's a problem so this is also one area where the european legislature intervened and said well this kind of basic information which is necessary for vehicle repair and maintenance that has to be made available via an open interface even to independent car dealerships not for free a fee can be charged for that and has to be a marginal fee so there's no there's no hard obligation that this kind of data sharing always has to be gratis without any kind of costs but there has to be in recognition that that competition and innovation um have to be possible here so we see that that this entire shift this entire emphasis on on data sharing and accessibility that that comes back in a lot of legal frameworks and none of those talk very much about intellectual property rights um but that also kind of touches on one of the major points that i want to look at here in the session about iprs because this is something that gets misunderstood quite frequently and it results a lot of uh creates a lot of problems as well on the data economy intellectual property rights have a very specific field of application and what public sector information legislation never did was expand that it also didn't undercut it i mentioned that already the open data directive also doesn't contain exceptions or carve outs to intellectual property rights but they also never depended on it if you look at how intellectual property rights affect open data sharing and also in the public sector uh context like at the open data directive there's actually some requirements that are not that trivial to me for a lot of data sets if you look at copyright in order to be able to say that your data is protected by copyright and therefore that you need a copyright based license for that means that you need to satisfy the originality requirement data that you uh want to be able to license under copyrights needs to show uh signs of of the originality the the creativity of an individual creator doesn't mean that it has to be very artistic or extremely unique or anything like that but there does have to be a sign of originality of personal individual input personal creativity from a specific person especially in public administration that's not so trivial to meet for most of the high value data sets that we mentioned that's objective data that's that's observational data it's very valuable data and a lot of money is invested in it but it's not original data there's no creative input and the selection of that data and the organization of that data it's it's all relatively objective for most of that data copyright does not apply now if you hear that entire explanation then intuitively would say well we also have database directive in the european union very eu-specific instruments and not all most jurisdictions don't have anything that's that's directly comparable to it um where we basically have a directive saying that you know you can get even if no copyright applies independently from whether copyright applies a database that you create can also receive protection to a generous database right if you made a qualitatively and quantitatively substantial investment if you've invested a lot of money or effort or time in creating a database then it's also protected by european intellectual property rights but not by copyright maybe but at least then under database rights but that's also something that's been eroded gradually and the impact has been left a little bit through series of rulings from the european court of justice to interpret the the the scoping of database rights basically saying and i'm vulgarizing and i'm summarizing a lot but basically saying that database are not databases are not protected uh by those specific database rights sui generous rights if databases are just a natural byproduct of the main activity of an organization so if you are a mobility service if you are the railway company and you pro you publish information about your train schedule that's not subject to database rights that's just a byproduct of the fact that you have to organize transportation i'm sure you did and do invest a lot of effort and a lot of time you invest a lot and keeping that information up to date but you don't do that to create a valuable database it's just a side effect of your main activities and that also erodes a lot of the database protections especially for the public sector which as a general rule doesn't invest qualitatively and quantitatively and databases just for the purposes of having a valuable database but which produces those as a side effect like the business registered registers mentioned earlier on no government invests in database registers because they like to have a valuable database it's because they need to have them to be able to do their public sector tasks so intellectual property rights are less of a pillar of this kind of policy making of the protection of data than people sometimes think it is so doesn't mean that intellectual property rights are not valuable or that they are not important and just to avoid misunderstandings i am certainly not saying that intellectual property rights are not relevant in a public sector information context it's just that it's not a universally applicable um requirement there's no law hard law that says that any kind of valuable information has to be protected by an intellectual property right and that is something that um where some times people mix up the the the cause and consequences this is also particularly important because when making data available as a service under the dynamic data context the data as a service api context you don't need strictly speaking intellectual property rights to protect information or to impose restrictions and to make sure that you can steer a little bit on how it can be used how it cannot be used we actually had case law on that as well from the european court of justice there are other rulings but this is the the main one that's been known a case between ryanair and pr aviation which essentially again i'm simplifying a little bit but essentially ryanair published their flight schedule on its website pr aviation was a company that um screen scraped more or less you know copied that information directly from ryanair's website and ryanair alleged among other points that that was a violation of their intellectual property rights that had violated their ipr rights and their database rights to that data their flight schedule which was available on their website european court of justice said no that makes no sense and following basically what i said earlier this isn't original data because it's just objective information which flight goes from where to where which date and which specific time and that's not original that's not doesn't show any creativity so copywrite and apply it also said that database rights so generous protection also did not apply because ryanair isn't investing in a database of its flights because it feels that it would be fun to have a valuable database it's just a side effect of the fact that it needs to organize flights that database just naturally happens you cannot conduct your business as an air company without that kind of database so no intellectual property rights so was there no violation of pr aviation was there no unlawfulness yes there was unlawfulness because despite the fact that no intellectual property rights existed in that database there was still an infringement of the contractual framework the terms and conditions that ryanair published basically intellectual property rights being an applicable doesn't mean that you can't write your own constraints you can write your own terms and conditions separate from any intellectual property rights um and publish those online or whatever their chosen means is to dictate on how your data can be used and cannot be used and that actually has a couple of interesting um consequences and a couple of interesting impacts a lot of people in the the open data community are kind of suspicious of intellectual property rights to begin with because they are seen very much as a tool for um constraining reuse constraining um accessibility limiting access um it's intellectual property rights are often seen as a negative factor something that makes a particular kind of use um impossible that's actually a little bit unnuanced intellectual property rights and some cases depending on how they are applied can actually be conducive to allowing openness as well and even there too i'd be very brief on that we've had some relevant some interesting case law as well from the european court of justice this european session so focusing on eu uh rulings and used soft case where the court of justice basically said that you are allowed to sell copyright licenses this was a case where used soft as the name kind of suggests sold used software licenses so if you bought a software license in this case from oracle uh you could use the services from used soft to sell your um copyright license uh to uh other customers there was a lot of discussion saying is is that actually possible as as a copyright license something that you can own and that you can sell it's a very important question of principle a court of justice said that and under very specific constraints which applied here yes it is possible to sell copyright licenses um main well i'll go into too much detail the main constraint is that obviously the the person who buys the licenses from you have to be eligible for the license as well so you can't sell your private license to a company or the other way around to sell a company license to a private consumer they have to meet the same requirements there are some other conditions as well but this is something that you cannot uh forbid on the basis of copyright law this is something that's that's lawful ing to the european court of justice if you don't have the crutch of intellectual property rights of copyright protected data or database rights protected data is that still possible if you have the if you accept the terms and conditions and have a services agreement to use specific data is that right as well can you sell your terms and conditions agreements as easily as you can sell copyright licenses honestly that seems less likely so this is an example maybe a niche example but still an example of where intellectual property rights are not a constraint on um on openness and on data sharing but they were where they actually are an enabler as well more generally also under um under copyright law copyright law has a lot of exceptions and carve outs for lawful users where legislator basically said if you have access to ipr protected uh information certain kinds of usage is lawful and does not require the permission from the rights holder like for instance conducting research academic research educational tasks the the private home use exceptions all of those are cases where you don't need permissions from the rights holder because they are predefined in intellectual property rights legislation if that falls away if there is no intellectual property right then those protections disappear as well so from that perspective um looking at the the bigger picture here if you look at data as a service dynamic data sharing is that better or worse than an intellectual property rights-based framework kind of depends where you're coming from um the safeguards and the protections that have been predefined by the legislator and intellectual property rights those fall away so you can't avail yourself of that anymore that is a clear negative on the other hand apis api based data sharing ecosystems they're a lot more easy to work with if you actually want to to set up a valuable flexible interactive data sharing ecosystem if you want to be able to exchange data in multiple ways not just the one-to-one exchange where one is the data holder making it available to the recipient but just enabling an ecosystem where very many people can reuse your data and exchange it among themselves and send data back which is more and more important in the data economy nowadays apis are ideal for that flexible mechanisms are available for that and on that point it's important to realize that api apis dynamic data sharing doesn't depend on ipr's so despite some of the the the sort of critical observations or the uncertainties that you have on whether certain data sets are actually eligible for intellectual property rights despite those reservations that doesn't actually have any implications on dynamic data sharing it just means that you're shifting away from a more tightly defined and regulated intellectual property rights framework to a more flexible and more uh contractually open terms and conditions and subscription-based framework and also it doesn't override any of the impacts of the open data directive this is an important point that i i mentioned and i hope that came across during the open data directive presentation no part of the open data directive requires information to be protected by intellectual property rights and none of the the um none of the obligations that member states have under the open data directive depend on intellectual property rights existing so you can exchange information freely you can impose contractual restrictions you can allow reuse irrespective of whether intellectual property rights exist it does mean however that there are some points that you need to pay attention to if information is not protected by intellectual property rights then all of those lawful usage rights that are defined in copyright law and the software directive for the database directive all the legislation that we have at the the the national and european and international level all of those safeguards fall away as well so it becomes a lot more important to look at whether any intellectual property rights are claimed and granted and if not that how usage rights and usage constraints are are governed in a contractual framework how the licenses address usage of specific data if there is no intellectual property rights it's particularly important if you look at the um for for highly innovative cases for instance if you want to do big data analytics ai analysis of specific data it's unlikely that a small company would be able to do that kind of work itself so it has to be just to be able to access data under terms that allow onwards dissemination it's not sufficient that i can get information from a database i need to be able to share it with a third party you will do the analysis for me i am not an ai expert i'm not going to be able to do large-scale analysis uh of of big data sets um so that that kind of of of permission needs to be it needs to be scoped a lot more carefully in terms and conditions in a subscription-based service than you would would normally do in a an ipr based license also because you're looking at an um subscription-based model where inherently data sharing is done as a service it's also more important to look at the assurances that you get around that service so use of service level agreements to whether you have any guarantees on availability and uptime of your data sharing service of your api um long-term availability assurances um the capacity throughput whether there are any limitations on how much data you can get out of it all of that becomes much more relevant when you are depending on a model where data is provided flexibly to you as a service and also and this is the perennial the eternal question for any kind of as a service type model what happens when uh someone closes the tap so to speak the idea of of any as a service model for data as a service model is you know you can open the dap tap and data will come out and you can use whatever you need pay maybe depending on on your consumption if it's if it's not free data and when you don't need it anymore you can close the tab and your use of the service ends right but what happens when the tap is closed what happens to the data that you've received are you required to delete it are you required to stop using it can you retain it are you allowed to continue to use historical data those are kind of questions that wouldn't pop up as frequently in traditional ipr based models which you know you could also write those kinds of constraints in an ipr model saying you know i i grant this license to you um to allow you to use this as long as you're paying this particular particular copyright license to me but it's not something that was inherent in and the philosophy and the logic of of ipr based data sharing and then in a service based uh data sharing ecosystem those kinds of considerations become a lot more important if you want to have long-term access to data that's been made available as a service to you then it becomes a lot more important to get assurances on whether you're allowed to use it and for how long you're allowed to use it after use of the of the service ends so um sort of the the the the big conclusion there and the the um the main trends i think are clear so we are moving gradually to a dynamic data sharing model data being provided as a service rather than a more static model i think it's also clear that there are a lot of benefits in there we see that there's a lot of legislation increasingly more legislation that encourages this this kind of model this is a model and approach that um possibly relies less on intellectual property rights than older data sharing models but i think it's also clear that that doesn't necessarily need to be um need to be a problem and um uh and data sharing practices it does mean that some homework is necessary to see what can be done and what cannot be done um but it is um i think an an exciting trend that organizations both in the public and private sector need to learn to uh to work with and where they need to have more attention to how they scope their terms and conditions how they scope their contractual frameworks to reflect the fact that they are now no longer just licensing data but they are actively service providers that requires a little bit of a different mindset okay that's the the the the presentation uh section of of uh of uh today's training sessions that was the the i'd say the less attractive part we already have a couple of comments that have been put in the chat i will be very um interested to uh to look at those in a moment we will first have a short coffee break to allow you to catch your breath and to well to grab a quick coffee um let's see we're slightly over about five minutes over time i think um i think we can stick to a 10 minute coffee break then and we can start at 3 15 sharp i see that my panelists are here so that's great um so we'll uh yeah have a break uh until 3 15 i'll put the exact moment in the chat for a moment so you can watch it and i'll be very happy to introduce my panelists and to open the floor to any kinds of questions and comments and considerations thank you see you in about 10 ish minutes welcome back everyone hope you have had the time to uh to grab a cup of coffee or something else to drink and that you're all ready to uh to continue the training hans are you ready for the channel discussion great okay so let me quickly get the names of my esteemed panelists back on the slides just a second i see on the participant numbers that virtually none of you has taken the opportunity to escape which means you are either legally required to be here or sincerely interested either way it's a good sign so i'm happy to see most of you still here um so we are going to start now the second part of the training session which is a more interactive panel discussion so i'm going to pick up on some of the questions that were uh raised in the chat as well i also have my own questions prepared for the panelists because there are a couple of things that i definitely want to pick their brain on um as well but we will be uh picking up on uh the questions that you will have uh in the uh chat as well so feel free to um to raise them there or feel free to unmute whichever uh you are most comfortable with so before i do that i just want to give um everybody uh what give the panelists the opportunity of uh introducing themselves uh briefly i have two panelists i mentioned already in the introduction unfortunately we had one panelist that had to cancel due to an overlapping commitment at the api days conference which is important because it strengthens the story that we've been telling you here that api based data sharing is a very important and very big thing so big in fact that there are two european events ongoing at the same time and you pick the right one to attend so good job um the two panels that we've had i've had the extreme pleasure of working with them a couple of years ago and many years ago already so i know that they are both very knowledgeable and very um experienced experts in their field with a lot of interesting things to share with us also interesting because they both don't bring a uniquely legalistic lawyer perspective to the table they have more practice based experiences in supporting governance public administrations portal operators data portal operators so they have a lot of of good information uh for us i will maybe give the floor of to each of them uh to present themselves very quickly and then we'll move uh to the uh questions here uh let me just quickly see yes uh anata you are there i see would you like to introduce yourself yes thank your hands um good afternoon everyone and thank you to for the invitation to session i hope you'll hear me well perfectly um and um yeah it has been very interesting so far and i look forward to contribute to the discussion from a view of local governments so i'm a social scientist and economist as han said not a lawyer and i'm working with vic for 25 years now this is the scientific institute for infrastructure and communication services founded in 1982 in the context of liberalization of telecommunications markets and we are working on public publicly funded projects mainly as we are apart or funded of by the german federal government partly but an independent scientific institute and in my current job i'm a deputy head of stateland digital which is which means um in in english city rural area digital a word play about popular children's and also adults gain in germany this means we work with the ministry of economics to support german municipalities to design and implement digital strategies and smart city projects and mainly on a local rural suburban level as you're maybe not aware we have 11 000 um local governments in germany and only 81 are larger than 100 000 inhabitants so our focus is definitely on the more on the smaller um on the smaller local governments so we we work with all kinds of shareholders at the moment with groups associations and we are giving also consultation to the ministry of economics on um on scientific developments in smart cities so i would like to share some of the experiences we had with these projects and i'm looking forward to your question and the discussion excellent very glad that you could make it you could join us i'm certainly interested also in hearing more about well precisely perspective from local administrations as well because it's you know there's often a big jump in between talking about all of the the policy priorities and then the legal frameworks and then looking at what actually can be done and should be done and will be done at the at the local level but before we dig into that uh maybe i'll pass the floor to uh tom zelsa first if you'd like to introduce yourself as as well yes good afternoon everybody um thank you for having me hans and and inviting me to this panel um i've been active in in uh open data and helping government entities to do open data for um 13 years now both on the eu national and local level in different places last year i was involved with the advisory study for the european high value data list where i let the research on earth observation environment