Limiti e limitazioni al diritto d’autore nel nuovo EU Data Package: alla ricerca del sistema perduto

In the past decade the EU legislator has engaged in the ambitious plan to regulate the key pillars of the EU data economy, with the aim to incentivize data sharing while preserving business incentives to invest in data generation and AI. With the 2020 EU Data Strategy, the Commission has further detailed the necessary steps to build a common EU data market, moving from a data-ownership to a data-governance paradigm and focusing on the need to foster access to and re-use of data in order to generate the greatest value possible from big data corpora and stimulate the development of the European AI industry. In line with these goals, the EU has enacted a number of Directives and Regulations in the field of data (Regulation on the Free Flow of Non-Personal Data, Open Data Directive, Data Governance Act, Data Act) and digital markets (Digital Services Act, Digital Markets Act), and is now rolling-out legislative plans for the regulation of Common European Data Spaces. Most of these acts impose sharing obligations on data holders, which inevitably conflict with other exclusive rights – first and foremost intellectual property rights (IPRs) and trade secrets. Compared to the past, when the EU legislator usually excluded data sharing in the presence of third-parties’ rights, the most recent interventions opt for a different approach to the balance between conflicting interests, and impose sharing obligations if specific requirements are met. However, this paradigm shift, which introduces external limitations to IPRs, comes with new provisions that are characterized by an extreme fragmentation and lack of internal consistency. Such a patchwork approach contributes to emphasize the wide array of remaining gaps in the regulation of the interplay between IPRs and the new data legislation – a circumstance that calls legal scholars to intervene and provide a new “systemic reordering”. This article aims at tackling this need, with a focus limited – for the sake of conciseness – to copyright only. It starts with an analysis of the state of the art, by providing an overview of the evolution of key concepts and definitions, of the new balancing needs triggered by the advancement of AI and data-related technologies, and of the interplay between copyright law and data sharing before the enactment of the EU Data Package. This will lay groundwork for the assessment of the new provisions introduced by the Open Data Directive, the Data Governance Act and the Data Act, looking at the problems they solved, left behind and created. Against this background, the article will advance interpretative solutions and reform proposals to fill in the most evident gaps that negatively impact on the correct balance between copyright and new data sharing obligations, as detailed by the most recent EU legislative interventions.