Compliance issues will differ depending on the countries in which businesses are operating and where there is movement of data across borders.
Contractual data issues
Data is not really “owned”, but, rather, there are “ownership-like” rights over data. There is no specific legislation that regulates ownership of data and no real consensus on how to regulate it. Different industry sectors will have different views how to do this. The risk is that without understanding the legal right and basis for access and use of a particular data set, there is a risk that data cannot be used without consent and permission. Conversely, competitors may be unintentionally granted wider rights to use a data set than was intended.
Construction companies should establish contractual data rights to counteract the lack of legal certainty. Parties should build and maintain data ‘ownership’ and quality into their agreements.
To do this effectively, construction companies must understand what data stakeholders need to access and restrain access as appropriate, including by the use of confidentiality obligations to protect valuable datasets. Although data can, on occasion, be protected by intellectual property (IP) rights – such as copyright, database rights in the UK and EU, or trade secrets – often this is not the case.
Each type of intellectual property right requires a separate analysis of its own rules which may vary between jurisdictions. It is often more likely that the technology infrastructure and systems used to collect or generate data attracts IP protection than the data itself. Data is often not unique because it could just as easily be collected by another system operating on site or generated via another process. Because of the limitations of IP rights in respect of data, construction companies are advised to provide for protection of data via contractual rights instead.
Contracts govern commercial relationships, set arrangements and allocate risks. These concepts are all relevant to the treatment of data. It is advantageous to specify contractual terms which explicitly state the intentions of the parties in relation to the data from the outset.
The contract can describe the categories of data ‘generated in the performance of the contract’ which has a potential value and clarify who can use the data, including third parties, and how it can be used. This can address the risk of disputes arising later and encourage greater data sharing, which in turn creates more valuable combined datasets.
These discussions can be complicated and difficult, particularly in relation to commercially sensitive data or data which is to be shared between competitors. It requires careful thought and handling, particularly across multiple stakeholders. Consideration should also be given to the potential requirement to disclose data in the event of a dispute or in connection with any regulatory requirements.
A standardised approach to addressing data sharing has yet to emerge in construction sector contracts. However, lessons may be learned by the approaches adopted in other sectors such as manufacturing.
Cultural barriers
A culture shift is needed to achieve more widespread data sharing in construction. Changes required include greater:
- Recognition of the value of data and to start to think about data as an asset;
- Trust, transparency and openness;
- Provision of data sharing structures that enable stakeholders to collaborate in a structured and well-managed, purpose-led way. This might include through the development of data sharing and data exchange tools like data trusts, and the creation of structures which help maintain the trust of the public and protects them from any negative impact that might arise from data sharing.
