DISCLAIMER: The information and views set out in this article are those of the author(s); and do not necessarily reflect the views of the Centre for Policy Studies or the Indian Institute of Technology Bombay.
Note: This is a guest blog. This article was first published in The Wire on 9 July 2019. We have republished it with their permission.
Economic rights to data about them is key for small economic actors, communities and developing countries. It will determine how they fare in the digital economy.
Digital data and the pervasive intelligence that it provides about people, and about artefactual and natural phenomenon, is the very basis of a digital economy. With the industrial revolution, machines soon became practically unavoidable everywhere; the same will be true of much of digital intelligence-based economic processes and systems as a digital economy takes centre stage. The efficiency dividend is just too high, and a host of entirely novel services simply too alluring for societies to resist them.
An important digital policy requirement is to enable people to retain control over their personal information. They should be able to entirely deny access to some kinds of it, and share others only with trusted parties. They should further be able to know and control any subsequent uses of their personal information, abuse of which can cause serious harm. These are the main principles underlying various personal data protection regimes like the EU’s General Data Protection Regulation (GDPR) and India’s proposed data protection law.
Data rights beyond privacy
As digital economy increasingly pervades most economic relationships, access to and control over various kinds of data determines the comparative economic advantage or disadvantage of the involved actors. This is a very different matter from privacy. It is true between consumers and corporations, between small actors on digital platforms – like Uber drivers and sellers on Amazon – and the corresponding platforms, and among nations.
As industrialisation threw up new winners and losers, so would the digital economy, and in a far shorter time. How much will corporations profiteer at consumers’ expense, whether small economic actors will survive, and if so at what terms, and which countries will move up the global ranks and which face colonisation-like conditions, would all be determined by how access to and control of various important data gets configured.
Laws aimed at data privacy may have some implications for safeguarding individuals against data based economic exploitation. But these are minimal and mostly not very effective, going by more than a year of GDPR’s reign. The reason is that current data protection laws do not focus on the economic dimension even in terms of individuals. But even more importantly, as digital economy’s mainstay shifts from targeted advertisements – for which personal data is key – to data-based intelligent management of sector-wide activities, it is anonymised and aggregated data that is increasingly most importance. AI, for instance, is built on such data, and is increasingly the key power behind digital economy.
Such anonymised and aggregated data – as many other forms of important data – currently has no legal protection, or ownership rules, whatsoever. The default is that whoever collects such data entirely and exclusively owns its entire value. It is this, entirely untenable, default that set the stage for a few digital corporations becoming globally the richest by market cap in just over a decade, small digital economy actors like Uber drivers and sellers on Amazon getting indefinitely squeezed towards subsistence levels, and all countries other than the two digital superpowers, the US and China, fast settling into, what would be a debilitating, digital dependency.
These clearly visible early trends will only intensify, and the scenario at the end of a decade or so is really not hard to make out. Either we accept this fast closing-in future, or try to avert it, towards a digital economy that is fair to users and consumers, to small actors in the economy, and to developing countries.
Economic discussions around data
At the heart of digital economy is the asset of data, something that is universally acknowledged today by businesses and global business related discussions, whether at the World Economic Forum or in the Financial Times and The Economist. In these circumstances, it appears very incongruent that ‘data as an economic resource’ almost never figures in policy discussions at global levels. At the national-level, its mentions remain mostly superficial.
The simple reason for this is that the US and its allies, who have a strong hold over global policy discourses, do not want to talk about it. Any ‘data as a resource’ discussion will immediately go in the direction of challenging US companies’ global extraction of valuable data. With the support of its allies, the US is right now busy trying to get all countries to sign on a ‘free global flow of data’ regime. The latter is simply a eulogy for the current default of ‘whoever collects data owns it’. Because once countries give up their right to check data from freely flowing out, no data ownership rules – or other kinds of economic rights over data – can ever be meaningfully instituted by them. That would be the end of any chance of a digital economy which is fair to small actors and to developing countries.
Most digital activism, even in developing countries like India, unfortunately, remains exclusively focussed on the privacy issue, which without doubt is very important. It completely ignores economic rights over data. There seems to an elite bias here, whereby it is hoped that markets would by themselves ensure fairness.
Any economic rights argument brings state agencies into data-related roles, which is judged as a cure worse than the disease. But the market logic does not seem to be working for the Uber driver, the merchant on Amazon, and the small restaurant and hotel exploited respectively by food delivery and accommodation-booking platforms. It does not seem likely to work for vast majority of consumers with low-purchasing power. And it would certainly leave India in a position of inextricable digital dependency on US or Chinese companies in almost all sectors, taking all Indians down collectively.
Torn between its geo-economic loyalty to the US and fast eroding digital economy prospects, the EU has started to make some tentative noises about economic rights over data, including of the non-personal kind, which could be collective/group data, or artefactual and natural data. Its policy documents speak about mandated access to digital data with private companies that is needed for public interest purposes. EU competition authorities are investigating who has the rights to data about goods put up for sale by third party sellers on the Amazon platform, the seller or Amazon. Another EU policy document questions whether the owner of a factory premise should own the machine data originating from the factory or the provider of digital applications that may run those machines.
Even if somewhat half-hearted, all these are allied explorations, beyond privacy protection towards various kinds of economic rights over data, of individuals, and of groups and communities, and including data coming from artefacts and natural phenomenon. The EU perhaps needs to be questioned how these emerging domestic policy positions square with its support to the US at global trade forums on ‘global free flow of data’ regimes.