Who Owns Data 2: What You Can't Own - by John Sumser - HRExaminer

Laws are based on people, places, and things. But you can’t hold a piece of data.

We’re looking at who owns data, why it matters, and what companies should be asking and doing to manage their collection, use, and sharing of data. Here’s the overview that explains what data is, and why source and context matter.

This post looks at the some of  the legal and practical concepts of ownership. Actually, we’re looking at what you can’t own.

Laws are based on people, places, and things. But you can’t hold a piece of data. So applying laws to data, information, and knowledge is difficult and confusing. (More so than applying law to anything.)

Let’s start with what you can’t own. This is important because sometimes data can be owned and sometimes it can’t. And some data will be public and some won’t. And some data may start out owned  but become public.

What Cannot Be Owned

People -You can’t own people anymore, at least in most Western countries. In the US, white men were the only legal people for a long time–everyone else was property. The 13th Amendment abolished slavery. Then slowly, minorities and women were granted the right to vote and legally recognized. Most countries have similar laws, but  some still don’t. What does this have to do with data? Well, if you were born 150 years ago, chances are you would be owned. Our ideas of what is ownable change.

Contraband— There are lots of laws that prohibit people from owning or possessing dangerous things like drugs, weapons and wild animals. These things are perfectly capable of ownership, and are bought, sold, and traded all the time. It’s just illegal. So laws often decide what can be owned.

Natural Forces— You can’t own natural forces like gravity, barometric pressure, storms, wind, rain or sun. But once rain or snow falls on your land, you have a right to collect it and do stuff with it. It gets trickier when one homeowner blocks sunlight to another homeowner. But you get the idea. So even if something is not owned in one state or condition, it can be owned under other circumstances.

Common Knowledge and Facts— Nobody owns math, or languages, or causation, or the fact that it’s hot in summer and cold in winter (unless you live in San Francisco). Common knowledge includes geography, folklore, and historic facts. It also includes things most people know and understand about how things work. For example, nobody can own “how to drive a car” even though someone owns the design of a particular car as well as the cars. So, when something becomes so commonly known or accepted, nobody owns it or the expression of it. The US Supreme Court has also said that facts about people like their names and contact information is generally in the public domain. So no one owns the information in a telephone book or directory.

Public Doman— These are works of art or writing that have expired copyrights or were never copyrighted. For example, the copyright to Alice in Wonderland expired long before copyright laws changed to protect later works for longer times. So nobody owns Alice. (But you still have to give attribution to Lewis Carroll for writing it to avoid plagiarism.) Other things like the text of the Bible, or the text of federal laws are owned by the public. So they’re owned by everyone instead of someone in particular.

Ideas- Nobody owns ideas. Once those ideas are expressed in a tangible or digital way, you can copyright them. If the ideas are a unique design for making something, or a unique method for doing something, you can patent it. But the ideas themselves are free-range and cage-free.

The last three, common knowledge, public domain, and ideas are the most important in thinking about who owns data. (Although if you listen to Big Data enthusiasts, they will tell you that data is becoming a new natural force.)

Common knowledge and ideas often start with something new and interesting. Until recently, the test was whether that knowledge or idea was in a tangible form like a document or a book or a formula. Once a person applied analysis or creativity and made something with the idea that you could identify, then she could claim a right to own it. But now, if you write a book, there can be unlimited copies, and it may never end up on paper in a tangible form. So the tangible or not tangible test doesn’t work anymore. Especially for data, which is almost always intangible.

Another problem with what you can or can’t own requires figuring out the difference between what is truly unique, and what is just the way it has to work. There were probably lots of designs for railroad tracks, but in order for trains to get anywhere, everyone had to build the same one.

Whether a system is unique or everyone has to adopt the same one to make it work is exactly what companies are struggling with in developing software, code, devices, applications and how to run the internet itself. My kids would really like all games to run on any device in the whole wide world. Anyone trying to coordinate multiple HR software programs would like them to automatically talk to each other and run seamlessly together. But they don’t because each company needed to design something unique that they could identify as theirs. They also wanted to make something better, faster, smarter and marketable. Yet having a distinct design has always been part of ownership. It’s how you know it’s yours.

Then at some point, one new, cool, different design becomes the standard, so that everything around it can work.

This is the basic battle between Google, Apple, Oracle and other big tech companies. They are battling to show they are unique so that they can own the legal rights to become ubiquitous.

In other places, it’s called monopoly. That’s why you have Word, even though it’s a terrible, horrible, no good, very bad, program. Microsoft figured out how to get it on all new computers long enough so that everyone used it. Now every word processing program has to be able to talk to Word because it became the standard.

But already, technology has routed around it. And people share and create text in hundreds of different ways. The olden days of emailing documents are almost over (except for lawyers who just got rid of their typewriters).

So ownership of data is going to depend on the finding a new line between what you can own and what you can’t own. We will have to find a new way to describe how ideas that you can’t own become something that you can, and what the rules are. We will also have to figure out the competing interests between being able to own a way of doing something and having a system that is public and standard, so that everything can work.

Next, we’ll look at what you can own and how you own it.

Here’s the rest of the series on data ownership

Read previous post:
Who Owns Data 1- Overview

The ownership of data depends on what the data is, how it was generated, what devices were used, where it...