Data Act or Data Hack?

Secret recipes have been around since the beginning of time. Whether they are ancient recipes passed down by monks, family heirlooms or popular brands,  formulas are kept in locked vaults. This is one of the unspoken rules of the kitchen. When walking in a restaurant, you simply don’t expect the chef to sit down and share his cooking tricks with you.

Likewise, also home appliances run on secret recipes. Each operated by a different technology, they deliver a great range of services to users. Ensuring intellectual property is protected at all times is therefore a key prerogative of all brands when marketing their products. If we take the case of a washing machine, for instance, most would agree that its main purpose is to wash your laundry. Yet, the EU’s proposed Data Act aims to go further than that, in its ultimate goal to make the data generated by the machine available to users. But what kind of data?

With appliances producing an unprecedented amount of information as we perform daily tasks, their importance must not be underestimated. “A distinction is needed between the data generated by the user, like the washing programme, the selected temperature or the cycle weight and those who are instead the very internal processes of the machine to comply with the request from the user – the recipe, in a nutshell,” explained Paolo Falcioni, APPLiA Director General.

While it is in the rights of consumers to have access to the data they generated, this should not be the case instead for the process behind it, as that entails a series of information that, just as a chef’s secret recipe, should not be disclosed to avoid hindering the competitiveness of the company producing it.

The overarching aim of the EU Data Act to stimulate a competitive data market is critical in a world where data has come to be the driving force of global economies, but shareable data must be carefully chosen to avoid the divulgation of trade secrets and intellectual property rights.

In its current form, the legislative text goes “trade secrets shall only be disclosed provided that all specific necessary measures are taken to preserve the confidentiality […].” Which reminds a bit of the logic of a secret shared with a friend, which is then leaked to somebody else, to the point where it is public domain. “Trade secrets must never be disclosed,” pointed out Falcioni. The research and design of applications takes years, and money. Under any circumstances a law can depower that effort.

In mid-September, the rapporteur of the European Parliament’s leading committee on industry (ITRE), Pilar del Castillo Vera, submitted her draft report. Over 1,000 amendments were subsequently tabled by other legislators, which could significantly reshape the original proposal. The final vote of the ITRE committee is foreseen for February 2023.