There was an interesting interview of Mr Mukhesh Ambani with Mr Arnab Goswami in which Mr Mukesh Ambani has spoken about “Data Ownership” and “Data Monetization”. He has strongly advocated that “Data” belongs to an individual or Corporate and no company should be able to make use of the data to make profits without sharing it with the data owner.
He used an analogy of property kept in a Bank locker and that the Bank does not have the right to take it out and use it to make profits even if the original property is returned to the property owner.
Just a few days back, we had a webinar from Justice B N Srikrishna where he highlighted his view on data ownership. He used the analogy of the terms “My House” and “My Wife” and said that we cannot apply the same principles of property ownership in these cases since in the case of “My Wife”, there is a personal “Relationship” involved which is different from the relationship with a property like the house. He therefore said that the concept of “Property” cannot be applied directly to “Data”.
I agree with Justice Srikrishna and endorse his view that “Data” whether “Personal” or “Corproate” cannot be considered similar to other properties like the movable or immovable properties. It does not even bear exact similarities to intangible properties like goodwill or intellectual properties like the trademark, patent or copyright.
The nature of data as a property could be closer to the property such as an “Enforceable Right” (Actionable Claims). But still Data is a type of commodity or right which does not fit squarely into any of the known types of properties and hence requires to be treated as an exclusive kind of its own.
Data is an exclusive kind because it is not static in an organization and has a life cycle. It starts it’s life cycle as raw data which is a set of zeros and ones in no specific form. Once some of these zeros and ones are grouped in a particular manner, some software-hardware combination may interpret as an ASCII character or a number or even as sound and image.
Whether the data is a word file or a note pad file or an mp4 file, it is still a series of binary representations and the first few sets of binary (Header information) identify which software is compatible and is designated to read the body of the data. Accordingly the header data invokes a specific software and we see the data as text sound or image.
Further, data is always in binary form and it is the person who is viewing it who renders a meaning to it. Hence the meaning of data is one that is ascribed by the viewer. If we remove the viewer, and the tools of viewing, all data looks the same… a sequence of zeros and ones.. To call some thing as personal and some thing as non personal, something as sensitive is all an imagination in the eyes of different viewers using different viewing tools. (This concept has already been embedded into our legal system through Section 65B of Indian Evidence Act)
The detailed explanation of the above concepts in the Theory of Data is discussed elsewhere on this site.
Given this nature of data to be dependent on the software and hardware and the beholder for a meaning, it is not appropriate to ascribe an absolute value to the data and identify who owns this value.
Further, through aggregation or dis-aggregation, data becomes personal data, or sensitive personal data etc. Personal data can also becomes de-identified data, pseudonymized data or anonymized data.
To ascribe a property nature to this data is therefore complicated and has to factor in the changing nature of the data through the lifecycle it goes through. Just as in the case of a human law applicable to a child is different from one applicable to an adult, a married adult, a senior citizen etc., data laws are different for different types of data. These laws determine the rights associated with the data at different life cycles and also determine the value.
Personal data P, may have a value X to a data fiduciary Y at a particular point of time. It may then be anonymized into P*. The value of P*may be zero to the same data fiduciary who was valuing it at X till now. At the same time to another research entity Z, P* may have some value of its own. So when P is converted into P*, it reduces in value for Y but increases in value for Z. If Y is selling P as P* to Z, it is like US selling crude oil at a negative price…difficult for economists to understand the valuation…
If we try to recognize this kind of property as some thing like a movable or immovable property or an actionable right, we would not be able to capture all the glory of the personal data. It is like watching of a pattern in the Kaleidoscope by a person who is color blind to multiple colors or perhaps is totally blind.
Hence we should stop looking at Data as a normal property but understand that it is some thing different.
Also the instrument that is used to transfer the right on this property is neither a mortgage deed nor a hypothecation deed , nor a contract as we know in law. It is different.
What is this “Different” breed?… Let us simply call it as an entity described as “Data” as defined in ITA 2000 and “Personal Data” as defined in PDPA, There is a person recognized as the “Data Principal” who is having certain rights against a certain set of data. He can hand it over to another person called the “Data Fiduciary” and give him some rights. The “Data Fiduciary” can further transfer it to another person called the “Data Processor” and give him some limited rights.
The parties Data Principal, Data Fiduciary and the Data Processor therefore handle the entity called “Personal Data” as per the provisions of PDPA. All rights on this “Personal Data” are determined by the law called PDPA. Just as the Transfer of Property act defines what is an “Immovable Property”, PDPA defines what is the property called as “Personal Data Property”. ITA 2000 defines what is a Data Property.
PDPA also defines the kind of rights that the Data Principal possesses and the rights that he can transfer. It also defines the rights of the Data Fiduciary and what he can transfer to a Data Processor. It also defines what are the rights of the Data Processor.
Hence the “Personal Data Property” is an exclusive kind of property and has to be viewed as such without equating it to any other known forms of property except to say it is like this in one feature and like another in another feature. All laws related to “Personal Data Property” arise out of PDPA and every other law is irrelevant.
When we talk of transferring the property, we should only talk of transferring the “Personal Data Right” in the “Personal Data Property”.
These discussions may be theoretical but are important for the purpose of developing jurisprudence in the data protection domain. I therefore place it before the public for debate as part of Naavi’s Theory of Data.