ALI-ELI Principles for a Data Economy: Data Transactions and Data Rights

Summary

This ALI-ELI project produced a set of transnational Principles that can facilitate the drafting of model agreements or provisions to be used on a voluntary basis by parties in the data economy. They can also be used as a source for inspiration and guidance for courts and legislators worldwide.

Background

With the rise of an economy in which data is a tradeable asset globally, more certainty is needed with regard to the legal rules that are applicable to the transactions in which data is an asset. Critical questions arise such as who has which right with regard to the data generated by connected devices? They need to be answered urgently, as lack of clarity in this field potentially hinders innovation and growth and, more importantly, troubles consumers, data-driven industries, and start-ups.

The law governing trades in commerce has historically focused on assets, and on trade in items, that are either real property, or goods, or rights (including shares, contract rights, 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’, which may be considered as any piece of information recorded in any form or medium.

Both in the US and in Europe, the data economy is beginning to trouble stakeholders, such as consumers, data-driven industries, and start-ups, because there is uncertainty as to the applicable legal rules and doctrines. 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. This uncertainty undermines the predictability necessary for transactions in data and has resulted in lawmakers and the courts grappling with these issues.

Aim

This project, conducted as a joint project of the ELI and the ALI, studied, identified, and collated the existing and potential legal rules applicable to transactions in data as an asset and as a tradeable item and assess the ‘fit’ of those rules with these transactions.

The project produced a set of transnational Principles that can facilitate the drafting of model agreements or provisions to be used on a voluntary basis by parties in the data economy. They can also be used as a source for inspiration and guidance for courts and legislators worldwide. Because data does not have a ‘location,’ the goal achieved is that the common set of Principles could apply wherever the parties happen to be.

Outcome

From October 2016 to February 2018 a Feasibility Study for the project was carried out, resulting, inter alia, in a 'Draft Framework for Discussion' prepared by Christiane Wendehorst, Neil Cohen and Steven O Weise and presented at the ELI Annual Conference 2017. Following the New York meetings on 15—16 February 2018, a ‘Pre-Draft’ dated 20 August 2018 was produced and presented at the ELI Annual Conference in Riga on 6 September and discussed in detail with ELI Advisors and the ELI Members Consultative Committee (MCC) on 8 September 2018. After the guidance received at this meeting, some further changes were made to the document before it was submitted as ‘Preliminary Draft No. 1’ to the ALI Advisors and Members Consultative Group (MCG) to be discussed in Philadelphia on 25 and 26 October 2018. Both meetings together resulted in a broad range of changes, including a re-ordering of the Chapters and Principles and a clearer focus on the transactional aspects, reflected in ‘Preliminary Draft No. 2’, dated 4 February 2019, and discussed at a joint meeting with the ALI and ELI Advisers and MCG/MCC members in Philadelphia on 22 February 2019.

An interim ‘Preliminary Draft No. 2bis’ was discussed with ELI Advisers and MCC members in Vienna on 3 September 2019, resulting in ‘Preliminary Draft No. 3’, which was completed on 15 October and discussed with ALI Advisers and MCG members in Philadelphia on 31 October 2019. It took on board guidance received since the earlier 2019 meetings, including scrutiny undertaken by the Berlin based tech-company acs-plus GmbH, suggestions from the industry, and inspirations gained at a meeting hosted jointly by UNCITRAL and French governmental institutions in Paris on 15 March 2019 as well as at the 52nd Commission session of UNCITRAL in Vienna on 17 July 2019.

On the basis of guidance received at and after the 31 October 2019 meeting, Principles 1-10 and 16-23 (then 15-22) were submitted as ‘ALI Council Draft No. 1’ to the ALI Council for its meeting on 17 January 2020 and approved that day. Taking on board further guidance received by ALI and ELI members, by UNCITRAL Working Group No. IV on Electronic Commerce on 28 November 2019, by the participants of a conference hosted by the German Ministry of Justice on 12 and 13 December 2019 in Berlin, the ELI Council on 21 and 21 February 2020 and the participants of an expert workshop hosted by UNCITRAL and Unidroit on 10 and 11 March 2020 in Vienna, the Reporters produced ‘Tentative Draft No. 1’. The latter was submitted electronically for consultation to the Members of the ALI, in lieu of submission for approval at the 2020 Annual Meeting (cancelled due to the COVID-19 situation). Tentative Draft No. 1 was further submitted to the members of the ELI Advisors and MCC for their remote meeting on 22 June 2020. The guidance received led to the production of ‘Preliminary Draft No. 4’, which was presented to the ELI Members at the ELI Annual Conference on 10 September 2020 and later discussed with ALI and ELI Advisors and MCG/MCC at a remote meeting on 8 October 2020. With the feedback received, including the feedback received at an international conference co-hosted by UNCITRAL and the Japanese government on 10 September 2020, from members of the Data Governance Working Group of the Global Partnership on AI (GPAI), as well as from the Federation of German Industries at a meeting on 4 December 2020, the Reporters produced ‘Council Draft No. 2’, which was submitted to the ALI Council for its meeting on 21 January 2020 and approved that day.

Taking on board guidance received during the ALI Council meeting, a joint meeting with the ALI and ELI Advisors and MCG/MCC on 8 February, and the meeting of the ELI Council on 11 February 2021, the Reporters produced Tentative Draft No. 2 which was submitted and approved by the ALI Membership at its Annual Meeting 2021 on 17 May. After a remote meeting with ELI Advisors and MCG/MCC on 28 June, the Reporters prepared the ELI Final Council Draft, which was approved by ELI Council on 1 September and by ELI Membership on 27 September 2021.

Case Studies

For some illustrative examples that the Principles for a Data Economy project seeks to tackle, please click here.