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Thoughts on EU Data Act proposal

On 23 February, the European Commission published its proposal for a Data Act –  new rules on who can use and access data generated in the EU across all economic sectors. The Data Act is the second legislation in the EU’s data strategy and is in line with the Open Data Directive.

As promised by the Commission, the Data Act is part of the broader EU digital strategy and 2030 digital objectives. The Commission is keen for the EU to retain its global leadership role, driving robust standards for a digital age. The Data Act is designed to rebalance control and power over data and hands more control back to consumers and small and medium-sized enterprises (SME) to more broadly unlock industrial data.

At first glance, the proposal appears to be a step in the right direction of ensuring citizens have power over their own data. Interoperability remains key to empowering citizens and enabling better sharing online. The predominant model of sharing – where content created on large platforms is owned and monetized and where algorithms can foster the spread of misinformation and fake news – is failing citizens and democracies alike.

Core elements of the Act include:

Facilitating access to and the use of data by consumers and businesses, while preserving incentives to invest in ways of generating value through data:

This includes clarifying the application of relevant rights under Directive 96/9/EC on the legal protection of databases (the Database Directive) to its provisions.

Providing for the public sector use of data held by enterprises in certain situations where there is an exceptional data need:

Primarily public emergencies, but also other exceptional situations where compulsory business-to-government data sharing is justified, to support evidence-based, effective, efficient, and performance-driven public policies and services.

Facilitating the switch between cloud and edge services:

Access to competitive and interoperable data processing services is a precondition for a flourishing data economy, in which data can be shared easily within and across sectoral ecosystems.
The level of trust in data processing services determines the uptake of such services by users across sectors of the economy.

Safeguarding against unlawful data transfer without notification by cloud service providers:

Following concerns raised about non-EU/European Economic Area (EEA) governments’ unlawful access to data.
Such safeguards should further enhance trust in the data processing services that increasingly underpin the European data economy.

Developing interoperability standards for data reuse between sectors:

Remove barriers to data sharing across domain-specific common European data spaces, inconsistency with sectoral interoperability requirements, and between other data that are not within the scope of a specific common European data space.
Supports the setting of standards for ‘smart contracts’ – computer programs on electronic ledgers that execute and settle transactions based on pre-determined conditions, which have the potential to provide data holders and data recipients with guarantees that conditions for sharing data are respected.

As the legislative debate heats up it would be good to see more focus on interoperability as it applies to better sharing online. There must be an opportunity to place citizens at the heart of this legislative proposal to ensure we have better sharing online in the public interest. Creative Commons looks forward to being part of this conversation.

An open public consultation on the Data Act ran between 3 June and 3 September 2021 and gathered views on measures to create fairness in data sharing, value for consumers and businesses.

The results were published on 6 December 2021.


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