The EU’s Data Act aims to unlock this potential by affirming new rights for businesses and individuals to access non-personal data (NPD) from the devices and equipment they use. And its Data Governance Act will facilitate NPD sharing between businesses, establishing new technical standards, legal mechanisms and infrastructure for data intermediaries.
The UK’s National Data Strategy, meanwhile, includes a ‘Mission’ to “unlock the value of data across the economy”.7 In November 2021, the government published a ‘framework for action’ designed to facilitate greater data sharing. The UK is also expected to extend the Open Banking model it pioneered, which allowed start-ups to access the data held by major banks, to other sectors such as energy.
Despite these efforts, and somewhat surprisingly, NPD is viewed as the least strategically significant of the four technology areas included in our survey. Only 65% consider it to be in any way significant, and just 9% view it as ‘highly’ strategic for their organisations.
This is at odds with the EU’s ambitions in the NPD space. It hopes to create nothing less than a new data-based ecosystem, in which sharing is not only enabled but encouraged. If successful, this has the potential to disrupt entire markets, with strategic consequences for many businesses.
Attitudes vary considerably by sector: 80% of respondents from digital platforms and intermediaries say that NPD is of strategic significance, compared with just 56% of respondents from the automotive industry (see Figure 2).
Just 9% of respondents view non-personal data as highly strategically significant today.
48% of life sciences respondents expect NPD regulation to pose commercial threats.
“This is in contrast to technological developments in the industry,” says Martin Wodraschke, head of the CMS Automotive Group. “Cars today are packed with digital devices and produce an increasing amount of non-personal data, such as data on tyre pressure, fuel consumption and battery charge status.
“At first glance, the personal data, such as the driver’s biometric data, driving behaviour and driving habits, seem to be more valuable, but the non-personal data will be crucial for the functioning of driving and vehicle safety in the future. Further, this vehicle data is also of great interest to other players in the automotive sector, particularly in the field of after-sales service.”
Even so, the majority has yet to acknowledge the significance of NPD, our survey indicates. When Europe regulation mandates NPD sharing, many in sectors where the use of sensors is key, including energy, life sciences and automotive, might find themselves missing opportunities when accessing data from competitors.
The impact of NPD regulation
Respondents are also less likely to see NPD regulation as presenting opportunities, threats, or even legal implications than the other three technology areas.
Only 69% view NPD regulation as a source of opportunity, with increased organisational efficiency and an increased ability to compete in the digital markets the most widely anticipated commercial opportunities (see Figure 3).
This proportion rises to 80% among respondents in the energy and infrastructure sector. Energy is a highly data-driven field, and opening up access to NPD could unlock innovation, efficiency and integration in national energy systems (see Towards energy platforms).
Just over a third of respondents (35%) see NPD regulation as a commercial threat. Across sectors, the top-ranked commercial threats arising from NPD regulation are reduced market share, reduced ability to disrupt competitors and increased technology adoption costs.
These fears are unfounded, says María González Gordon, a managing partner at CMS specialising in intellectual property and digital business. “The intention of the NPD regulations is to achieve the opposite effect to that which is feared by the survey respondents. The measures are intended to level the playing field and provide greater access to data across all sized business in fair, reasonable and non-discriminatory terms, providing efficiencies and a more competitive landscape.”
Opening possibilities for Europe’s data
A key pillar of Europe’s data strategy is the creation of various sector-specific ‘data spaces’. These combine data standards, governance mechanisms and infrastructure to facilitate data sharing within a given industry.
One of the most widely anticipated is the European Health Data Space. 8 This promises to grant patients greater control over their medical data, while also giving researchers access to anonymised data.
This has the potential to revolutionise Europe’s healthcare sector, explains Roland Wiring, a partner at CMS specialising in the life sciences sector. “Since pharma and medtech companies, as well as insurers and healthcare providers, have substantial data, this industry has a wealth of raw data waiting to be unlocked,” he says.
But, given the sensitivity of medical data, the European Health Data Space is subject to its own regulation, currently in development. Policymakers from around the EU are currently debating how the need for patient privacy can be balanced against the potential value of their data to medical research.
Their answer to that question will have far reaching consequences for the future of the industry. “This is a core issue both for the industry and healthcare providers,” adds Wiring.
The healthcare industry has a wealth of raw data waiting to be unlocked.
Dr. Roland Wiring
Partner
Roland Wiring, Partner, CMS
The highest level of concern is registered by respondents in the life sciences/healthcare sector, 48% of whom see commercial threats arising. Among other concerns, these companies may fear that open access to data from connected healthcare devices will threaten their ability to use it to their competitive advantage or that data collected using considerable resources would need to be provided to third parties.
Respondents’ muted optimism about NPD regulation, compared with other areas included in the survey, suggests that in-house counsel across industries are underestimating its impact. The Data Act in particular promises to open new frontiers in the digital economy by allowing users of any connected device to access the data it contains. With data now widely recognised as a strategic asset, this is certain to have dramatic economic effects across sectors.
The EU may be a victim of its own success: GDPR has succeeded in making companies cautious about the use of data. It may also run counter to in-house legal teams’ instincts on competition law. “The Agencies generally warn companies not to share any sensitive data between competitors because it might lead to collusion,” says Björn Herbers, a partner at CMS specialising in competition law and digital business.
But both EU and UK policymakers are committed to unlocking the economic value of unshared and underused industrial data. Companies must understand both the obligations this will place upon them – in particular, how they must respond to data access requests – and the opportunities it presents to gain more data, and therefore more insight, on customers and competitors.
Inhouse legal teams need to get used to the new NPD rules: The Agencies generally warn companies not to share any sensitive data between competitors.
Dr. Björn Herbers, M.B.L.
Partner
Bjoern Herbers, Partner, CMS
