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Big Data and Intellectual Property: A Comparative Analysis of European and American
Laws
Bhargav Namala
Saint Peter’s University
Sanjeev Thapar
DS-650
November 9, 2023
2
Big Data and Intellectual Property: A Comparative Analysis of European and American
Laws
In today's digital and technological milieu, big data surge stands out as a crucial resource
for both commercial enterprises and scholarly inquiry. As the amount and diversity of data grow
at an unprecedented rate, the impact on intellectual property (I.P.) legislation, designed to
safeguard the interests of digital-era innovators and originators, becomes increasingly significant.
Understanding the nuances between European and American I.P. regulations is essential,
especially when considering patents, copyrights, and trademarks, due to the robust economic
connections across the Atlantic and the inherently international character of data.
Patents
In the realms of the United States and Europe, patents aim to foster inventive progress by
awarding inventors with sole ownership of their creations for a set duration. Within the U.S., the
administration of patent rights is under the jurisdiction of national law, primarily under the Patent
Act (35 U.S.C.), and is managed by the United States Patent and Trademark Office (USPTO) (De
Bruin, 2022). Traditionally, U.S. patent legislation adhered to a first-to-invent principle.
However, the America Invents Act (A.I.A.) has shifted the approach towards a first-inventor-to-
file system, aligning U.S. practices more closely with those recognized globally.
Europe presents a more complex picture regarding patent acquisition, where inventors
can secure a national patent from specific countries or opt for a European patent via the
European Patent Office (EPO), which operates under the European Patent Convention (E.P.C.).
Although unique country-specific nuances exist, the overarching European patent system
predominantly follows a first-to-file rule (De Bruin, 2022). This implies that patent entitlement is
usually granted to the individual who first applies, irrespective of the actual order of invention.
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Big data complicates these frameworks, as the line between what is an inventive technical
solution and what is merely an abstract idea or mathematical method (which is not patentable)
becomes blurred (De Bruin, 2022). The European approach, with its more stringent requirement
for technical character and inventive steps, often leads to a narrower scope of patentability for
algorithms and data processing methods compared to the U.S., where the threshold has
traditionally been more permissive. However, recent case law (such as the Alice Corp. vs. C.L.S.
Bank International decision) has introduced more uncertainty in the patentability of software
and, by extension, big data technologies.
Copyrights
Copyright protection in the U.S. is automatic upon creating an original work of
authorship fixed in a tangible medium of expression, as outlined in Title 17 of the U.S. Code.
The European Union harmonizes copyright law among its member states through directives such
as the Copyright Directive (2019/790/E.U.), which also provides automatic protection for
original works (Lucchi, n.d.). The duration of copyright in the U.S. generally extends to 70 years
after the author's death. This is largely consistent with the term dictated by the Berne
Convention, an international agreement governing copyright, to which both the U.S. and EU are
signatories.
In big data, the question arises as to whether datasets can be copyrighted. In the U.S., the
compilation of data can be copyrighted if it exhibits a minimal degree of creativity in the
selection or arrangement of the data (Lucchi, n.d.). The E.U. similarly allows copyright
protection for databases. However, it also provides a sui generis database under the Database
Directive (96/9/EC), which protects a database irrespective of its originality. It provides a
substantial investment in obtaining, verifying, or presenting the content.
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Trademark
Trademark laws in both jurisdictions protect consumers and businesses by ensuring that
marks used to identify and distinguish goods and services are not subject to unauthorized use. In
the United States, trademark rights are established through use in commerce, although
registration with the USPTO provides additional legal benefits (Sartore, 2016). The Lanham Act
is the primary federal statute governing trademark law in the U.S., providing for registering
trademarks and service marks and offering remedies for infringement.
The European Union, meanwhile, offers the possibility of registering a European Union
Trade Mark (EUTM) through the European Union Intellectual Property Office (EUIPO), which
grants protection across all member states. Alternatively, individual E.U. countries have their
trademark laws for national registrations. The E.U. also recognizes unregistered trademarks, but
the scope of protection is generally more limited than registered ones (Sartore, 2016). Big data
intersects with trademark law in the context of brand analytics and online advertising, where
trademarks are often used to target and retarget consumers. The aggregation and use of such data
must be carefully managed to avoid infringement and to respect the rights of trademark owners.
Conclusion
The interplay between big data and intellectual property law raises complex legal issues
on both sides of the Atlantic. While the foundations of I.P. law share common principles in the
U.S. and Europe, divergent approaches to protecting patents, copyrights, and trademarks reflect
broader differences in legal philosophy and policy objectives. As big data continues to grow in
importance, stakeholders in the U.S. and Europe will need to navigate these differences,
balancing the promotion of innovation with the protection of intellectual property rights. The
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evolution of case law and legislation will continue to shape the legal landscape for big data and
I.P. in both jurisdictions.
References
De Bruin, R. (2022). A Comparative Analysis of the E.U. and U.S. Data Privacy Regimes A
Comparative Analysis of the E.U. and U.S. Data Privacy Regimes and the Potential for
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Convergence and Convergence.
Hastings Science and Technology Law Journal Hastings
Science and Technology Law Journal
, p.
13
.
https://repository.uclawsf.edu/cgi/viewcontent.cgi?
article=1115&context=hastings_science_technology_law_journal
Lucchi, N. (n.d.).
Buffalo Law Review Buffalo Law Review
.
https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?
article=1021&context=buffalolawreview
Sartore, F. (2016).
Big Data: Privacy and Intellectual Property in a Comparative Perspective
.
https://doi.org/10.15168/11572_142585
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