This piece was originally published in the January – February 2020 ELI Newsletter. 

We read, see, and hear much in the news about data issues. Much of it concerns questions of privacy, real and property rights to data, and the proper use of data collected in the course of everyday lives and business. These are important issues. There are other, also
important, but more prosaic matters that need attention.

Behind all of those activities are the agreements for the use of that data. These day-to-day concerns can have a significant effect on the rights of the parties as a matter of the law of obligations, contract, and commercial law. The joint project between the ELI and the ALI – called Principles for a Data Economy – Data Rights and Transactions – gets into the behind-the-scenes ‘plumbing’ of these transactions. It looks to the underlying law of obligations, contracts, and commercial expectations of the parties and seeks to identify and organize the types of provisions and commercial rights of parties to these transactions.

Because data has no location and ‘crosses’ borders at will, it is important that persons entering into agreements that concern data, wherever the parties to the transaction are located, have a common approach and understanding of the terms of the agreement and the respective rights of the parties. To this end, ELI and ALI have assembled impressive groups of judges, practitioners, and academics to work together to establish a common understanding of these transactions.

While existing law of obligations, contract, and transactions law apply to these transactions, as the use of data increases, practices are developing within these areas of the law tailored to these transactions. The goal is to discern the developing approaches and state a set of principles that is consistent with the law in this area and practice in actual transactions. The collection and distillation of these principles should aid all who work in these area – whether they do so fulltime or just dabble in the area. We urge ELI Council members to review the current draft of the Principles and invite comments and suggestions, to be sent to the ELI Secretariat by 7 March 2020.