Data-sharing is often one of the fundamental elements for creating solutions to transition towards a more sustainable future. Many agree. Still, potential data providers may feel that it is safer not to share due to perceived uncertainty on essential legal issues. Is that fear real, and how can we counter it?

By Anja Stensrud Elverum , Senior Associate in Advokatfirmaet BAHR AS

"The value of data is often emphasized both by those who possess data and those who would like to use data, and it is generally agreed upon that data sharing can be beneficial.

In practice however, our experience is that many find sharing of data difficult. BAHR has learnt that the real barriers to data sharing are frequently related to fear of uncertainty.

Potential data providers feel that it is safer not to share due to perceived uncertainty on important issues.

First uncertainty: Fear of liability exposure

The first uncertainty is related to possible liability exposure resulting from sharing.

Liability exposure can be linked to the quality of the data sets, such as errors. As far as the quality of data is related, we believe that this fear of potential liability is more theoretical than real, to a large extent.

Here are a few examples showing that liability for providing free of charge information that turns out to be incorrect, as long as there was no ill will, is quite rare.

A Norwegian municipality issued permits for building cabins. Unfortunately, it turned out that the permits were based on erroneous information. The area had a higher risk of an avalanche than permitted.

The municipality was not liable for the costs of building cabins that – as it turned out – could only be used during the summer. The municipality had not known about the high risk of avalanches when issuing the permits. Further, the municipality could not be blamed for not having obtained this information at an earlier point in time, given that there had been no indications that the specific location was a high-risk area.

Another fear of potential liability exposure relates to data unveiling behaviour or previously identified patterns. For example, if improved data analysis identifies environmental consequences of human activity not formerly known.

While liability for own activities may, depending on the situation, perhaps not be excluded, it is in practice very seldom that the root cause for such exposure is related to the sharing of data.

Second uncertainty: Helping others to profit

A second uncertainty is a fear of missing out.

Data, in particular, in combination with other data, may represent commercial value.

A data provider could be worried that sharing would mean giving away data that could – potentially and at a later point – lead to commercial advantage for others without any corresponding benefit to the original data provider. This may not be perceived as fair, even if the data provider would not be able to extract the value on its own.

Why is this specifically a challenge when sharing operational data? Let us illustrate by using the example of being a house owner.

A house owner has an exclusive right to use the house, is responsible for paying to maintain the house, can decide to let other people borrow the house, can sell the house and much more. The legal rights and obligations that follow from owning a house are quite clear.

For the type of operational data we are talking about here, on the other hand, it is not always evident by law what rights the original data provider holds after sharing data openly.

This type of data does – often and typically – not enjoy specific protection by law. This is contrary to, for instance, trade secrets, patents or copyright-protected material, which all do enjoy specific protection by law.

This lack of specific regulation for data-sharing creates uncertainty. If no one owns the published data, can it be used freely also for commercial purposes?

Will the data be like a house with no door or key, free of use for everyone, and with no benefit for the homeowner? This does not necessarily seem right for most companies and people, even though the owner’s own use of their house is not impaired.

However, one should not forget that the lack of specific protection for data, as we have for patents, also creates an opportunity for more sharing and transparency, and it enables specific and targeted solutions for different scenarios. But the house, to follow the analogy mentioned above, needs to have a door and a key in order not to obstruct data-sharing.

How to reduce these uncertainties and overcome the fear of sharing

These uncertainties and corresponding fears are real for many possessing data. How can we overcome this?

As in all paradigm shifts in society and every industrial revolution, an appropriate legal framework dealing with the new situations naturally enters in the wake of the events. A clear legal framework for data publication is now essential to reduce these uncertainties to keep up with society and business.

This framework should include a precise contractual regulation on which terms data is shared and how data sets can be used. Specifically, the following are some points to consider mitigating the fears mentioned above:

An appropriate regulation of liabilities in terms of use, where it is made clear that any data is provided “as is” and that use is at the risk of the user;
Certain limitations on the permitted use of the license granted to the data are appropriate. Such limitations may include that the data sets cannot be used to support illegal activity, sold by itself or that it can only be shared upon granting attribution.

These are only a few points to be considered when clarifying the rights and obligations between data providers and users of the data. In addition to clarifying contracts, there is, currently, legislative work on data being conducted both on the EU and Norwegian levels.

To contribute in this respect, BAHR is working with C4IR Ocean on developing a legal framework around the publication of data on the Ocean Data Platform, which will include a guideline for the open publication of ocean data in addition to terms of use for the publication and use of data.

From a legal perspective, no activity is ever risk-free. But appropriate contractual regulation and an updated regulatory framework will reduce uncertainties and promote increased data sharing.

To the benefit of society as a whole.

The Fear of Uncertainty