‘User-provided personal content’ in the EU: digital currency between data protection and intellectual property

Abstract

This contribution aims to conciliate different legal frameworks regulating ‘user-provided personal content’, i.e. personal data valuable also in terms of Intellectual Property (IP) that is provided by data subjects to data controllers. This category of information lies at the interplay between personal data protection (i.e. the GDPR and the e-privacy directive), IP rights (i.e. the proposed directive on Copyright in the digital single market) and e-commerce (and in particular, the proposed directive on digital content). This network of legal provisions lacks uniformity and tends to consider ‘information’ on a sector-specific basis. What is here thus performed is an inter-sectorial analysis looking for a common language, common definitions, problematic overlaps and envisaged opportunities for the management of user-provided personal content in the digital market. In order to find objective parameters for the definition of user-provided data, it has been proposed a ‘test’ based on three variables: activity of the data subject in providing data, awareness of the data subject in providing data and activity of the data controller in collecting data. On the other hand, in order to adequately protect individuals in the management of user-provided content in the digital market, this article proposes a user-centric system based on full controllership and awareness of individuals on their own ‘personal content’ management. Controllership should be based on two separate legal tools: fair licences over user-generated content and the right to withdraw and transfer such content from one platform to another, i.e. the full exercisability of the right to data portability and right to erasure. Awareness should be based on clear information about commercial purposes of that data processing, in order to respect freedom of consent and purpose limitation principle.

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