Data in legal philosophy and practice: contemporary conceptual and regulatory developments

Abstract

This article analyzes the recent evolution of the concept and regulation of data as an integral attribute of the digital age. At the conceptual level, two extreme approaches are in focus. First, the so-called dataism approach, characterized by a speculative but also often radical and shocking holism. The other approach is dominated by an equally radical, inert, and problematic skepticism. This paper proposes an alternative philosophical position towards data (as a phenomenon), analogous to sociological jurisprudence or legal realism in the philosophy of law. Various relevant aspects are analyzed at the regulatory level, ranging from attempts to define ‘data’ in legislation to possible tectonic breaks in the paradigm of copyright and sui generis rights. In this context, it is highlighted that the protection of the property rights of data holders, which has been the subject of a narrow academic debate, even though data have a growing economic value and are increasingly important for economic growth and prosperity. This paper calls for a more balanced approach to data while also balancing the interests of data holders, data users, and society. This may also require some significant changes in the regulation of copyright and sui generis rights, in which data are only subject to copyright and sui generis protection in very limited cases. (Translated with www.DeepL.com/Translator, free version).