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

For an overview of past and upcoming meetings of this project, please click here.

ELI Members, who are interested in actively contributing to the development of this project are invited to join the Members Consultative Committee (MCC). Kindly contact the ELI Secretariat  if you would like to join the MCC of the ALI-ELI project.

Quick Facts

Project Type: Instrument
Procedure: Regular
Adopted: CD 2018/2 (On Projects)
Project Period: February 2018–September 2021

Background

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. More fundamentally, there is already uncertainty about what rights parties ‘own’ and can trade in, eg, who ‘owns’ the data generated by an activity such as driving a connected car, what are the attributes of that data and rights related to it, and who might have to pay compensation to whom for exploiting the data’s economic potential. 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 American Law Institute (ALI), will study, identify, and collate 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 aims to produce 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 would be to have a common set of Principles that would apply wherever the parties happen to be.

Outline

While the exact issues to be addressed by the Principles for a Data Economy (and the order in which they are addressed) would need to be defined after more preparatory work has been conducted. It is to be expected that the Principles could, by way of example, include the following parts: (a) General Provisions; (b) Entitlements with Regard to Data; (c) Lawfulness of Control and Processing; (d) Transactions in Data; (e) Security Interests in Data; and (f) User-Generated Data.

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 meeting on 15—16 February 2018, the document has been totally rewritten and is in the course of being further amended.

Members Consultative Group (ALI)

  • Joseph R Bankoff
  • Shawn J Bayern
  • Spyridon V Bazinas
  • Michael M Baylson
  • Jeffrey A Beaver
  • Harvey G Brown, Jr
  • Timothy W Burns
  • Stephen Yee Chow
  • Wayne Dale Collins
  • Michelle Williams Court
  • Anuj C Desai
  • J William Elwin, Jr
  • Daniel M Filler
  • Henry D Gabriel
  • David Gruning
  • Peter E Halle
  • Richard E V Harris
  • Edwin E Huddleson
  • Howard O Hunter
  • Catherine Kessedjian
  • Renee Knake
  • Peter R Kochenburger
  • William K Kroger
  • C Scott Maravilla
  • Juliet M Moringiello
  • Iain D C Ramsay
  • Dan Robbins
  • Victor E Schwartz
  • Kenneth W Simons
  • George Prescott Slover
  • Mary L Smith
  • H Mark Stichel
  • Guy Miller Struve
  • Louise Ellen Teitz
  • Sjef van Erp
  • Jane K Winn
  • Peter A Winn

Project Reporters

  • Neil Cohen
  • Christiane Wendehorst

Project Chairs

  • Lord John Thomas
  • Steven O Weise

Advisory Committee (ELI)

  • Michelle Bramley
  • Jose Antonio Castillo Parrilla
  • Peter Donnelly
  • Josef Drexl
  • Sjef van Erp
  • Bénédicte Fauvarque-Cosson
  • Simon Geiregat
  • Zoubin Ghahramani
  • Friedrich Graf von Westphalen
  • Václav Janeček
  • José Carmelo Llopis Benlloch
  • Dame Angela McLean
  • Axel Metzger
  • Francisco Molina
  • Joanna Perkins
  • Radim Polčák
  • Martin Schmidt-Kessel
  • Sam de Silva
  • Gerald Spindler
  • Loredana Tassone
  • Jos Uitdehaag

Members Consultative Committee (ELI)

  • Nahel Asfour
  • Francesco Avolio
  • Mariangela Balestra
  • Elena Bargelli
  • Marco Botta
  • Christoph Busch
  • Wian Erlank
  • Fabio Ferraro
  • Mateusz Grochowski
  • Tatjana Josipović
  • Pascal Pichonnaz
  • Meliha Povlakić
  • Albert Ruda
  • Marta Santos Silva
  • Juliette Sénéchal
  • Herbert Zech

Advisers (ALI)

  • Hannah Bloch-Wehba
  • Amelia H Boss
  • Julie S Brill
  • Molly Cutler
  • Sarah C Dodds-Brown
  • Stacy-Ann Elvy
  • Lindsey Finch
  • Ivan K Fong
  • Ahmed Ghappour
  • James Grimmelmann
  • Anton G Hajjar
  • Teresa Wilton Harmon
  • Michele C Kane
  • Harold Hongju Koh
  • Lucy H Koh
  • Carolyn B Kuhl
  • Travis LeBlanc
  • Henry Lebowitz
  • Ronald D Lee
  • Michael Leiter
  • Lance Liebman
  • Christina Mulligan
  • Christopher H Schroeder
  • Paul M Schwartz
  • Peter P Swire
  • Christopher S Yoo