Principles for a Data Economy (with the American Law Institute, ALI)

The law governing trades in commerce in the United States and in Europe has historically focused on assets, and on trade in items, that are either real property, or goods, or rights (including shares, intellectual property rights, licenses, etc).

With the emergence of the data economy, however, tradeable items often cannot readily be classified as goods or rights, and they are arguably not services. They are often simply ‘data’. Both in the U.S. and in Europe, the data economy is beginning to trouble stakeholders (such as consumers, data-driven industries, and start-ups), and consequently also lawmakers as well as the courts. Concerns range from manifest uncertainty of the law, potentially inhibiting innovation and growth, to a loss of control by governments, legislatures and judiciaries, to serious issues of consumer protection and fundamental rights.

Project's objectives

This proposed project would study the legal rules applicable to transactions in data and seek to develop a framework. The goal would be to synthesize and rationalize the treatment of data as an asset and tradeable item across many areas of the law. The final product would be a set of transnational principles concerning how to integrate the emerging data economy into existing legal systems. The set of transnational principles could be used as a source for inspiration for legislators and judges worldwide.

Project outline

The project is currently in the phase of a feasibility study, taking contract law as a pilot and starting point. On the part of the ELI, the feasibility study is led by Christiane Wendehorst (University of Vienna); further members of the working party are Sjef van Erp (Maastricht University), Bénédicte Fauvarque-Cosson, (Paris II Panthéon-Assas), Radim Polčák (Masaryk University Brno), Lord John Thomas (Lord Chief Justice of England and Wales) and Friedrich Graf von Westphalen (Attorney-at-law in Cologne). On the part of the ALI the study is led by Steven O. Weise (Proskauer Rose LLP, Los Angeles); further members of the working party are Amelia H. Boss (Drexel University Thomas R. Kline School of Law, Philadelphia), Neil B. Cohen (Brooklyn Law School, New York) and Teresa Wilton Harmon (Sidley Austin LLP, Chicago).

The ELI is particularly grateful to the Fritz Thyssen Foundation for their financial support.

LEADERS

  • Steven O Weise
  • Christiane Wendehorst 

WORKING GROUP MEMBERS

  • Amelia H Boss
  • Bénédicte Fauvarque-Cosson
  • Friedrich Graf von Westphalen
  • Lord John Thomas
  • Neil B Cohen
  • Radim Polčák
  •  Sjef van Erp
  • Teresa Wilton Harmon