Big Data Rights Protection Found in Internet Copyright Law

-- As a type of content, Big Data is covered by certain statutes

New Jersey Law Journal  April 15, 2015   

By Jonathan Bick Bick is of counsel at Brach Eichler in Roseland. He is also an adjunct professor at Pace and Rutgers law schools, and the author of "101 Things You Need to Know About Internet Law" (Random House 2000).

The Internet is awash with data, all of it with varying degrees of copyright protection. Internet-related data is commonly referred to as Big Data. Big Data is a form of content and, hence, Big Data rights are primarily copyright rights. Thus, in addition to the Copyright Act, Big Data is best protected by such Internet-related statutes as the Digital Millennium Copyright Act (DMCA) (Pub. L. No. 105-304, 112 Stat. 2860 (1998)).

Big Data is intimately coupled with the Internet, as suggested by the fact that from an etymological perspective it did not spring into existence until after the Internet was well established. Immense amounts of records were collected by computer business systems, such as the phone company and by governmental agencies such as the Census Bureau prior to the Internet, but that content was generally isolated and mass dissemination was difficult.

The Big Data-Internet connection is evidenced by the fact that the Internet is required for most Big Data transactions, including collection, storage and dissemination. Most of Big Data's content consists of uniquely Internet-related elements, namely users' transactions, meta-tag applicators and Internet content providers.

In sum, disorderly digital data of the Internet is a big component in what is now being called Big Data. Most of the other constituents of Big Data are derivatives of Internet data, such as metadata. By describing the contents and context of data files, metadata increases the value of said files. As a result, metadata facilitates the discovery and transfer of relevant information.

The term "copyright" literally means the right to copy. From an intellectual property law perspective, copyright has come to mean that body of exclusive rights granted by law to authors for protection of their work. The owner of the copyright has the exclusive right to reproduce, distribute, publicly perform or display the work; to prepare derivative works; or to license others to engage in the same acts under specific terms and conditions.

Big Data has spawned legal rights difficulties as to who owns the copyrights to certain data and what protections exist for good-faith intermediaries who store and disseminate Big Data. While the general principles for resolving such difficulties are found in the Copyright Act of 1976, certain Internet-related copyright statutes provide better guidance.

For example, the DMCA, enacted in 1998, was innovative in this regard. Among other things, it created a notice-and-takedown procedure for copyright owners and online intermediaries, a corresponding safe harbor from liability (17 U.S.C. §512 (2012)), and legal protection for technological protection measures (17 U.S.C. §1201).

Big data may be classified in four groups: user data, information data, application data and platform data. Understanding the nature of the data is useful for assessing which entity has which copyright rights in the data.

The ownership of the data, and the rights relating to its use, are initially related to the entity that first converted the subject data to a tangible form. In particular, as soon as the data was susceptible to being seen or heard, a copyright right arose. Ownership and rights will determine how the data can be managed into the future.

Once a copyright springs into existence, the United States grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time, with the intention of enabling the creator to receive compensation for his intellectual effort. The exclusive rights are limited by limitations and exceptions to copyright law.

A copyright protects works of authorship, such as writings, music and data that have been tangibly expressed. Here are some sample data sources and, thus, copyright creators: standard report users, ad hoc query users, remote partners/suppliers, power users, business executives, statisticians/data scientists, executives and the board of directors, and human resources. The user who is responsible for making the data tangible is considered the owner. The relationship said user has with others, if any, determines who has rights associated with the data.

Usage of data from third parties will usually be subject to copyright and/or licensing agreements. Even if data is freely available via the Internet, there may be terms and conditions associated with its use.

The copyright right is retained under most purchase agreements or licenses. However, copyright owners through licensing arrangements may give express permission for certain kinds of use/re-use, for example noncommercial use. If the data desired for re-use has no evident express permission, it is advisable to approach the copyright owners.

Some kinds of third-party data may also have additional usage restrictions, such as ethical requirements around data linkage and the identifiability of human subjects. If data involves third-party information about people, a separate set of privacy issues may arise and may require more than meeting the requirements of the data owner.

User data includes all data that is related to individual users. The copyright rights for said data are the most likely of all data to have competing rights holders, namely the data's author and the subject of the data.

Information data includes all "types" of data. Sample types of information data include: transactional, master, meta, controlled, reference, reporting, analytical, open, cross-functional, historical, department-specific and process-specific.

Application data includes all data that results from a user's interface to the data. This data is generated when a user requests and gets access to his email, stores data, or develops and executes reports.

Platform data includes data necessary to administer data systems. This data is related to where the data is stored and processed. This includes the structured data in operating systems and data warehouses, and Twitter data stored in the Amazon cloud.

The most significant three types of Big Data players are known as data collectors, data partners and data buyers. Data collectors are entities that accumulate data. They are entities which generate data and store it. They may be computer users or firms that communicate with users via the Internet, such as website clicks, customer-managed relationship data, order transactions, social data, cross-platform and mobile data. This is the best type of data to have, if a company has permission to have it via explicit or implied consent.

Data partners' data is some other entity's data collector's data. Through a partnership or agreement, two companies share customer data for a cross-promotional campaign, for example. Or a site or application allows you to log in with a social profile, like Google or Facebook, instead of making a user set up yet another user name and password for yet another site.

Data buyers' data is the collected, aggregated and anonymized data that is typically sold by data brokers. This data is widely available, including to your competitors. This is the data that consumers have little to no control over and, most likely, have not given explicit permission for you to use. •