The Quest for the Fifth Freedom: Access to Data and Information in Conflict with the Protection of Intellectual Property
The Quest for the Fifth Freedom: Access to Data and Information in Conflict with the Protection of Intellectual Property

Summary/Abstract: This article explores the concept of the freedom of information, linked to the goalsof the European Research Area, and its relations with the evolving concept of freemovement and free flow of data. Both concepts relate to the fundamental principles of the single market: free movement, non-discrimination and market access. In thecontext of the internal market, public authorities need to ensure market accessfor private economic operators in the area of goods, services, the labour marketand investment. Free flow of data and information is based on the autonomousunderstanding of “access” – not access to the market, but access to digital resourcesof both public and private actors. This implies a discussion whether there is a principleof free movement of data enshrined in the Treaty, and if not, would it be necessary toinclude an express reference to data in the single market context. There maybe tworeasons for those deliberations, firstly, the question of competences of the EuropeanUnion and its legislative powers. Secondly, it would mean potentially ranking freemovement of data quite high, and discussing if it should be given priority over theprinciple of intellectual property protection.Reference to the goals of the European Research Area provides the frameworkfor considering the growing importance of the European Strategy for Data, but,at the same time, the difficulties surrounding the fact that our interest in dataand information, often requires accessing material protected with exclusive rights.The main question considered in this article is how to solve the imminent conflictbetween control over the exploitation of protected works, videos, recordings ordatabases, with the objective of data access and sharing, furthered in data law.The overall objective, from the single market perspective, is to enable the flowsof information and data. To demonstrate the potential conflicts concerning accessand sharing, fostering the freedom of information is used as an example, with thefocus on research and exchange of research data, and the example of IoT generateddata in the Data Act.

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