The meeting focused on the Preliminary Draft No 2. After the guidance received at the ELI Annual Conference in Riga in September 2018 and at a meeting in the US in October 2018, Christiane Wendehorst and Neil Cohen as Reporters had produced a fully revised ‘Preliminary Draft No. 2’, which was presented to a critical audience from both the ALI and the ELI at the ALI premises in Philadelphia.

Preliminary Draft No 2

The new draft features as many as eight Chapters, which appear in an entirely new order, with the Chapter on transactions taking the lead. There is a much clearer focus on the transactional aspects and issues arising in data value chains as well as in the context of data marketplaces. The shift of focus, and the new arrangement of topics, had been suggested by the project Chairs, Lord Thomas of Cwmgiedd and Steve Weise.

The most innovative part of Preliminary Draft No 2 is Chapter V on rights with regard to ‘co-generated data’, which was very favourably received by representatives of both organisations. This Chapter identifies, analyses and collates existing and potential future rules on access and porting rights, as well as of other data rights, taking into account that more than one party has usually contributed to the generation and accumulation of data. The fact that a party had a share in the generation of certain data – such as by being the object of the information coded in the data, or owning the device by which data has been generated, or having designed the device with the help of which data is generated– may, together with other factors, give rise to a special relationship between that party and any controller of the data.

For example, an important part of the data economy is the supply of goods, digital content, and services to customers where, through the use of these commodities by the customers or other users, data is generated, and transmitted to and ultimately processed by the supplier or producer of the commodity or any other third party chosen by the supplier or producer.

The Principles analyse, inter alia, the situation of customers with regard to user-generated data, addressing intricate legal issues such as a customer’s access and porting rights, or how to ensure the customer’s right to re-sell the commodity or to switch the supplier, as well as other typical constellations in data value chains.