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PROBLEMS OF APPLYING THE RULES OF THE INSTITUTE OF
INTELLECTUAL PROPERTY LAW TO BIG DATA RELATIONS
Tojiboev Sarvar Zafarovich
Tashkent State University of Law
Lecturer of the Department of Civil Law
https://doi.org/10.5281/zenodo.15707061
The relationship between Big Data and intellectual property rights is
complex and multifaceted, at the heart of which lies the question of the right to
own and use information. Traditional intellectual property rights mainly protect
the results of creative activity (works, inventions, designs, etc.) and means of
individualization (such as trademarks). Big Data, on the other hand, is often not
a creative work, but a collection of facts, observation results, sensor data, and
similar raw data. In legal doctrine, facts and information themselves are not
considered property - in US law, for example, in the case of the Supreme Court's
Feist v. Rural
states that simple facts are not protected by copyright. Therefore,
a large dataset itself (if it does not have an original structure in terms of
copyright) cannot be a direct object of copyright
1
.
However, the value of Big Data collection and the benefits derived from it
are reflected in the labor and resources spent on its creation and collection. In
law, various approaches are applied to protect such a product of labor. In the
experience of the European Union, this issue has been resolved
through the
introduction of "sui generis" database law,
that is, there is a mechanism for
protecting databases collected without original creative selection with a
separate property right. In the United States, there is no such exclusive right;
instead,
contractual
and
commercial secrecy
institutions and, in some cases,
misappropriation
are applied
2
.
The application of the design of the intellectual property law institution in
the context of Big Data refers to the adaptation of existing legal frameworks - for
example, the principles of copyright, patent law provisions, database protection
mechanisms, methods of protecting commercial secrets - to the conditions of use
and protection of Big Data. There are various conceptual approaches to this in
the scientific literature. While some scholars proposed introducing a separate
"data ownership right" for Big Data, others approach this approach cautiously,
warning that such a new right may clash with the protection of personal data
and freedom of innovation. For example, a German lawyer
Thomas Hoeren
poses the question "if new property rights to data are introduced, does this
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contradict personal data protection laws?" In fact, Big Data often includes
personal data, and the transfer of ownership rights to them can affect the
fundamental rights of the subjects of this data. For this reason, a new category of
intellectual property for Big Data has not yet been created at the international
level, but the problem is being solved by integrating existing legal instruments
3
.
Another theoretical issue is the emphasis on the concepts of use and control
over ownership. In the Big Data era, controlling access to and restricting access
to data is becoming more important than acquiring property rights. Researchers
note that in Big Data relations, the paradigm
"transition to ownership to
access" (ownership to access)
is observed. That is, from an economic point of
view, it has become more important to determine who, when, and under what
conditions can access them than the data itself. Therefore, the legal strategy of
large data owners is often aimed at restricting the confidentiality of information
(commercial secrecy) and the dissemination of information on a contractual
basis. Along with contractual restrictions, technical protection measures (e.g.,
DRM
, encryption, API access restrictions) are also applied. All of this expands
the traditional understanding of intellectual property rights, demonstrating that
it is being mobilized to protect Big Data assets.
Below is an analysis of how individual areas of Big Data and intellectual
property law - copyright, patents, sui generis rights of databases, commercial
secrets, etc. - are affected, legal problems arising from Big Data in these areas,
and ways to solve them.
Copyright traditionally protects works of literature, art, and science, that is,
expressions that are the result of the author's creative activity. In the context of
Big Data, copyright is relevant in several ways:
1. Copyright status of a dataset:
If the database or dataset contained in
Big Data has a creative character in terms of selection or regulation, then it can
be a copyrighted
compilation (collection work)
. For example, if a database of
statistical data is compiled in a certain original way, then in accordance with the
legislation of Uzbekistan, such a database is also recognized as an object of
copyright. In the Law of the Republic of Uzbekistan "On Copyright and Related
Rights," the concept of a database is defined as "a set of systematized
information expressed in objective form, which can be found and processed
using a computer," and is provided as an object of copyright. However, in
practice, Big Data datasets are often collected automatically, without creative
selection (for example, data collected by scanning websites). In such cases,
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copyright does not grant protection rights to the contents of such a collection,
since it does not contain the original creative layer necessary for authorship.
2. Copyrighted materials in Big Data:
A Big Data collection may include
content from various sources, such as copyrighted works in the form of text,
images, audio, or video. For example,
text and data mining
technologies
(Text
and Data Mining, TDM)
are used to analyze corpora of scientific articles or
literary texts - in this process, software tools can copy and analyze thousands of
copyrighted texts. From a legal point of view, this copy is a reproduction, which
is prohibited without the permission of the copyright holder according to the
usual rules of copyright. At this point, a legitimate question arises whether the
use of such works in Big Data for research or analytical purposes violates
copyright. In recent years, many countries have introduced special exceptions to
copyright as a solution to this issue. For example,
Articles 3 and 4 of the Digital
Single Market Directive adopted by the European Union in 2019
established
exceptions for research institutions and other users that do not consider the
TDM process a copyright infringement. Based on these exceptions, researchers
and AI algorithms can analyze large text and image corpora without obtaining
separate permission from copyright holders (only access to the source must be
unlimited). Similarly, in 2018, Japan amended its legislation, declaring automatic
data analysis for any purpose (including commercial) legal. In the USA, although
there is no such clear normative exception, in judicial practice, TDM is permitted
with the help of
the "fair use" doctrine.
In particular, the digitization and
indexing of millions of books within the framework of
the Google Books
project
was recognized as not infringing on copyright. In the USA, the court
recognized this as scientific-analytical and transformative use, that is, fair use.
Thus, in the process of analyzing Big Data, opportunities for use are being
created that do not contradict copyright. However, at the same time, the scope of
these exceptions may vary in each jurisdiction; for example, in Europe there is a
complete exception only for scientific research and some general purposes,
while for the general public, a limited (if the purpose is not commercial)
exception is applied.
3. Works created using Big Data and copyright:
Big Data is often
processed by artificial intelligence systems, and in some cases, artificial
intelligence can create new information or even works. For example, the
emergence of texts and drawings written by generative AI as a result of machine
interpretations learned from Big Data corpora (a phenomenon observed today) -
the issue of applying copyright to these works is also causing discussions.
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Copyright is usually tied to a human author, and the question remains open
whether an independent "creation" of artificial intelligence is protected by
copyright. The US Copyright Office recently confirmed that only works created
by humans are eligible for copyright, while it announced it would not grant
copyright to artificial intelligence generation. Europe and other jurisdictions are
also not yet unanimous in this regard. Although this issue is not directly part of
the Big Data legal relationship, it is important because the probability that
secondary products created using Big Data are not covered by copyright may
affect the commercial value of Big Data projects. For example, if a summary or
report automatically generated using big data analysis cannot be copyrighted,
there is a risk that competitors will freely copy it. This can reduce the motivation
of investors and creators. Some scientific doctrines offer specific solutions for
such cases (for example, a special right with a very short additional protection
period), but there is currently no practical solution.
