Reporters:
Neil Cohen, Brooklyn Law School, Brooklyn, NY
Christiane Wendehorst, University of Vienna, Department of Civil Law, Vienna, Austria
Chairs:
Lord Thomas of Cwmgiedd, Essex Court Chambers, London England
Steven O. Weise, Proskauer Rose, Los Angeles, CA
ALI-ELI Principles for a Data Economy
- Data Transactions and Data Rights -
______________________________
Tentative Draft No. 2 (12April 2021)
Neil Cohen and Christiane Wendehorst
____________________________________________
SUBJECTS COVERED
Principle 1: Purpose of these Principles 13
Principle 2: Scope of these Principles 21
Chapter A: Rules and Principles Governing Data Contracts 47
Principle 5: Application of these Principles to data contracts 47
Principle 6: Interpretation and application of contract law 52
Chapter B: Contracts for Supply or Sharing of Data 56
Principle 7: Contracts for the transfer of data 56
Principle 8: Contracts for simple access to data 71
Principle 9: Contracts for exploitation of a data source 78
Principle 10: Contracts for authorization to access 83
Principle 11: Contracts for data pooling 88
Chapter C: Contracts for Services with regard to Data 95
Principle 12: Contracts for the processing of data 95
Principle 13: Data trust contracts 102
Principle 14: Data escrow contracts 113
Principle 15: Data marketplace contracts 119
Chapter A: Rules and Principles Governing Data Rights 124
Principle 17: Application of these Principles to data rights 129
Chapter B: Data Rights with Regard to Co-Generated Data 133
Principle 18: Co-generated data 133
Principle 19: General factors determining rights in co-generated data 140
Principle 20: Access or porting with regard to co-generated data 145
Principle 21: Desistance from data activities with regard to co-generated data 156
Principle 22: Correction of co-generated data 160
Principle 23: Economic share in profits derived from co-generated data 162
Chapter C: Data Rights for the Public Interest and Similar Interests 166
Principle 24: Justification for data rights and obligations 166
Principle 25: Granting of data access by the controller 174
Principle 26: Data activities by recipient 177
Part IV: Third Party Aspects of Data Activities 184
Chapter A: Protection of Others against Data Activities 184
Principle 28: Wrongfulness of data activities vis-à-vis another party 184
Principle 29: Rights that have third-party effect per se 190
Principle 30: Contractual limitations 196
Principle 31: Unauthorized access 201
Chapter B: Effects of Onward Supply on the Protection of Others 205
Principle 32: Duties of a supplier in the context of onward supply 205
Principle 33: Direct action against downstream recipient 213
Principle 34: Wrongfulness taking effect vis-à-vis downstream recipient 216
Chapter C: Effects of Other Data Activities on the Protection of Third Parties 226
Principle 35: Duties of a controller with regard to data processing and derived data 226
Principle 36: Wrongful processing 233
Principle 37: Effect of non-material non-compliance 238
Part V: Multi-State Issues 242
Principle 38: Application of established choice of law rules of the forum 242
Principle 39: Issues not covered by established choice of law rules of the forum 248
Tentative Draft No. 2 contains the entire project: Part I, General Provisions; Part II, Data Contracts; Part III, Data Rights; Part IV, Third Party Aspects of Data Activities; and Part V, Multi-State Issues. This draft was approved by the membership at the 2021 Annual Meeting, subject to the discussion at the Meeting and to editorial prerogative. The project will be presented next at the ELI’s annual meeting. This material may be cited as representing the Institute’s position until the official text is published.
Tentative Draft No. 1 contains Principles 1-4 of Part I, General Provisions; Principles 5-6 of Part II, Chapter A, Rules and Principles Governing Data Contracts; Principles 7-10 of Part II, Chapter B, Contracts for Supply or Sharing of Data; Principles 15-16 of Part III, Chapter A, Rules and Principles Governing Data Rights, and Principles 17-22 of Part III, Chapter B, Data Rights with Regard to Co-Generated Data. This draft was prepared for consideration at the 2020 Annual Meeting, which was cancelled. The draft has not been considered by the membership of ALI and therefore does not represent the position of the Institute on any of the issues with which it deals. The draft may be revised or supplemented prior to consideration by the membership in 2021.