1) Property rights and information relations
One of amendments to the Ukrainian Law “On Information” was more than 10 years ago. The legislator in particular removed from it provisions on the ownership of information. Yes, from 1992 until 2011 it had provisions regulating ownership of information.
The amendments did not cause a great scandal, but rather reflected the de facto situation. I will not consider what consequences this had for the owners of the information. When dealing with this issue courts might apply the same approaches as with the right to permanent use of a land plot (the scope of which was reduced in 2001) – it exists, but it is no longer possible to dispose of and to acquire it, or they will resort to a specific interpretation of the “ownership of information” in such a way that its volume then and now coincides, thus limiting it in the past to the volume that “the right to information” has now.
Obviously, the basis for these changes was Art. 34 of the Ukrainian Constitution, adopted in 1996, which says that everyone has a right to freely obtain, to store, to use, and to disseminate information.
The problem with information is how its circulation is regulated, how to prove and on the basis of what attributes that it is “your” information, and how to get it from a person other than you, if the information you had has been destroyed, but this person has a copy of it and does not give you access to recover/retrieve the information, especially in non-contractual legal relations, as well as how to prohibit the dissemination of “your” information by other parties.
2) Foreign approaches
Of course, in other countries people have already sought answers to these questions.
In particular, the Contract Guidelines on Utilization of AI and Data of the Ministry of Economy, Trade and Industry are pretty known.
It is an impressive document that covers many aspects and international experience in creation, provision and sharing of information, which was first published in 2017 and subsequently amended.
It states that data “is intangible, and because it is not the subject of rights under the Civil Code such as ownership or possession, usufruct, or security interest, it is not possible to prescribe the existence or absence of rights pertaining to data based on concepts of ownership or possession”.
According to the Guidelines, “an assignment of data is generally considered to mean that all authorities relating to the data, including the status to control the utilization of the data, are transferred to the assignee and the assignor ceases to have any authority relating the data”.
Data licensing is also considered there. Data licensing means that “the data provider grants the utilization rights to the data retained by the data provider to the licensee within a certain scope, and the licensor does not cease to have all utilization rights to the provided data”. In the Ukrainian legal system this could be qualified as granting temporary access to information.
Another type of relations is joint utilization (cross license), when the parties to a contract grant each other a right to use the data of the other party. In essence, it is sharing homogeneous intangibles.
The Guidelines indirectly define the term “data utilization” through the “purpose and methods of utilization”. It is recommended to describe in detail characteristics (items, quantity, granularity, etc.) of the data regarding which a contract will be concluded.
The issue has also been studied in the European Union, in particular in the 2017 Report of the European Commission Joint Research Center titled The economics of ownership, access and trade in digital data.
It explains what is understood as “information” and as “data”: “Information is the semantic content that can be extracted from data or signals”.
Thus, data after being processed and interpreted transforms into information.
In addition, it is clarified that “Material goods are, by nature, rival goods. If one person uses it, the other cannot use it at the same time. For example, a CD or DVD cannot be played on two players at the same time. Rivalry makes it easier to claim exclusive property rights on material goods: you have it or you don’t. Ideas, data and information are non-rival. Many people can use the same data at the same time without any loss of information content for any of these parties”.
One of the conclusions of the Report is that “The legal status of data ownership rights [is] less clear. Partial and limited ownership rights to data are defined in the EU Database Directive (1996) and the General Regulation for the Protection of Rights in personal data (2016), combined with some provisions in the Trade Secrets Protection Directive (2016) and in general contract law”.
3) Status of information in Ukraine
The situation in Ukraine is similar. Information is an object of civil rights, so transactions in relation to it are possible. However, it is not a corporeal object and not an object of ownership, but an intangible object.
In Art. 200 of the Ukrainian Civil Code, it is stated that modalities of use of information and enforcement of the right to it shall be established by a law. There is such a law; it is the Law “On Information”.
The definition of information in the Law “On Information” says it is any knowledge and/or data that can be stored on tangible media or embodied in electronic form. It’s hard to imagine what data is not regarded as information. It’s either the data that we don’t know it exists, or the data that we’re unable to store/embody.
This legal definition does not make a distinction between “data” and “information” mentioned in the 2017 Report of the European Commission Joint Research Center titled The economics of ownership, access and trade in digital data. This means that in Ukraine information is equated with data, regardless of whether the person who has access to it understands the meaning of this data and interprets it correctly.
Art. 302 and 91 of the Ukrainian Civil Code give individuals and legal entities a right to freely obtain, to store, to use, and to disseminate information. The main principles of information relations are openness, accessibility of information, freedom of information sharing.
And Art. 20 of the Law “On Information” provides that any information is open to the public, except the one classified by law as information with restricted access.
Of course, the Ukrainian legal system provides for restrictions related to access and dissemination of information of certain categories. In particular, Art. 21 of the Law “On Information” introduced the category “information with restricted access” and the subcategory “confidential information”. It includes information about an individual, as well as information to which access is limited.
Confidential information may be shared at will (consent) of the relevant person in the manner determined by that person and in accordance with terms specified by that person, as well as in other cases determined by law.
What is confidential information about an individual, i. e. “personal data”, is written here and here.
4) Operations with information
The question of who is the initial right holder that has the right to control circulation of information is not easy.
If we are talking about personal data, then this is the individual to whom this personal data refers.
In case an information operator has a set of data sufficient to identify an individual, then one may consider that this individual has certain rights, provided by legislation on the protection of personal data, in relation to this data.
My opinion is that in so far as an information operator is not obliged to carry out identification of an individual, the information operator is responsible for respecting the personal data rights of only those individuals whose personal data is in information carriers under control of the information operator. That is, if, without resorting to external sources, the operator is unable to identify the individual based on the data the information operator has, then the operator does not have personal data.
If an information operator has a set of data sufficient to identify an individual and the information operator is aware of this, then the individual is identified, but when the information operator is not aware, then the individual is identifiable.
As for other situations, but not all, related to the initial right holder, the answer can be found in Art. 6 of the Ukrainian Law “On Scientific and Technical Information”. It says that a person acquires the primary right to scientific and technical information as a result of: i) creation of this information by this person and at his/her own expense; ii) performance of an agreement on creation of scientific and technical information; iii) performance of any agreement containing provisions on transfer of rights to information to another person.
Furthermore, rights to scientific and technical information created by several persons shall be allocated by an agreement concluded between the creators of this information.
Interestingly, it is not allowed to collect, to store, to use, and to disseminate confidential information about an individual (personal data) without his/her consent.
However, regarding confidential information other than personal data (non-personal data), the law does not restrict its use, but only specifies that a person has a right to restrict access to the information and to determine how it may be disseminated.
According to this logic, this also means the right to prohibit access (storage) and to stop dissemination, and this, in turn, leads to the fact that without access to the information, it is impossible to collect, to store and to use it, and, accordingly, to disseminate it.
However, in my opinion, if a person has provided the other person with access to confidential information (non-personal data), then that other person has a right to use the information in question at his/her own discretion in compliance with the confidentiality protection regime and without obtaining an additional permission for the use.
This conclusion is based on Art. 302 and 91 of the Ukrainian Civil Code, which by default give a right to freely use information. In this case, the right to use information (non-personal data) cannot be limited in a contractual manner, that is, the other party may not become obliged to pay not only for the access, but also for the use of the information, since this would be contrary to Art. 27 of the Civil Code that deals with the legal capacity of individuals, and will also groundlessly limit the legal capacity of legal entities (Resolution of the Ukrainian Higher Commercial Court dated April 28, 2014 in case No. 910/20959/13 on limiting the legal capacity of legal entities).
This exception does not apply to all types of information because, for example, permission is required for use of trade secrets. However, this permission is mandated by law governing intellectual property, and not by law governing information relations.
And now more about what is the use of information. The answer is in Art. 19 of the law On the Protection Against Unfair Competition and in case law.
In the ruling of the Sumy Region Court of Appeals, dated March 21, 2013, in criminal case No. 1806/1-290/11, the court noted that the use of confidential information about a crime victim is the use by the accused person, at his/her own discretion, of information that is a personal or family secret of the crime victim, for serving a particular need of the accused person or obtaining a particular benefit by the accused person.
In addition, the ruling of the Supreme Court, dated November 23, 2020, in case No. 910/1759/19, states that illegal use of a trade secret includes applying it in manufacturing or taking into account while planning or carrying out business activities, without permission of the holder of the trade secret.
Another definition of “use of information” is given in the resolution of the Kyiv City Court of Appeals, dated August 03, 2016, in case No. 757/40254/15-p. The court noted that it is applying the information in economic or other activities with the aim of obtaining benefits or advantages, including through dissemination, sale as well as other activities that a person performs with the help of the relevant information or taking advantage of the fact that she/he has this information.
And in the resolution of the Khmelnitsky City Interdistrict Court, dated July 31, 2012, in case No. 2218/13580/2012, it is additionally explained that the use of the information specified in the wording of Art. 172-8 of the Code of Administrative Offenses, means that the use is active operations with the information, and not just holding or hiding this information.
The scope of the term “use of information” does not always coincide with the list of activities that are considered the “use of a copyrighted work” in accordance with Art. 441 of the Civil Code.
This is exactly what is discussed in the judgement of the Dnipropetrovsk Region Commercial Court, dated November 17, 2017, in case No. 904/1126/17. The court noted that the manufacturing of products with the use of the information, namely the processes and methods described in the technical specifications in question, is not protected by copyright, therefore, in this part, the relief will not be granted. Here the issue was about enforcement of copyright against application of the processes described in technical specifications.
However, “use of information” may coincide with “use of a trade secret, invention, utility model, geografical indications, etc.”. It depends in which way the user of the information satisfies his/her needs when uses the information.
In the already mentioned ruling of the Sumy Region Court of Appeals, dated March 21, 2013, in criminal case No. 1806/1-290/11, there are explanations provided regarding other activities with information. Collection of confidential information about an individual involves obtaining it in any way, including theft. Storage of information is defined as its storage and accumulation in a certain place on any data carrier (paper, electronic, video, etc.). Dissemination of confidential information about an individual should be understood as communication by any means (orally, in writing, in print, using a computer network, etc.) of such information to an indefinite number of persons (at least one person).
The Ukrainian Supreme Court also expressed its opinion about the dissemination of information in its resolution “On judicial practice in cases of protecting the dignity and honour of an individual, as well as the business reputation of an individual and a legal entity” issued in 2009. Dissemination of information should be understood as: its publication in the press, broadcast on radio, television or other mass-media; dissemination on the Internet or through other means of telecommunications;
The term also includes such activities as placing the information into evaluation reports, statements, letters addressed to other persons; providing the information in public speeches, in electronic networks, as well as through other forms and ways to at least one person. Information shall be also considered disseminated when posters, slogans, other works are hanged, demonstrated in public places as well as when leaflets are distributed among people.
I purposely singled out the “distribution of leaflets among people”, since dissemination of information with the help of any carrier was meant here, despite mentioning only leaflets as a carrier.
To be continued.
© Yuriy Karlash, 2022
Технології, Медіа і Телекомунікації 