A DISCOURSE ON THE INTELLECTUAL PROPERTY

ASPECT OF BIG DATA

J U N E 2 0 1 9

BACKGROUND

“Big Data” is a relatively new concept thatrefers to the constant, vast, and seeminglyinfinite stream of data created by ourpersistent interaction with technology andsmart devices.[1] The concept describes the massivecollection of structured, unstructured, andmulti-structured data that flow through ourdigital universe every day — data streamedfrom phones and credit cards, internetactivities and embedded systems, televisionsand computers; from the infrastructure ofcities, sensor-equipped buildings, trains,buses, planes, bridges, factories, and theover five billion phones humans carryaround.[2] “The volume of stored information in theworld is growing so fast that scientists havehad to create new terms, including zettabyteand yottabyte, to describe the flood ofdata.”[3] Big Data is ubiquitous: the digital universeis so large — and is doubling in size everytwo years — that by the end of 2020, it isexpected to reach 44 zettabytes.[4]

Putting that in perspective, it may be usefulto note that a single Zettabyte isapproximately equal to a thousand Exabytes,a billion Terabytes, or a trillion Gigabytes. Inmore relatable terms, “the most popular newsmartphones today have 32 Gigabytes ofcapacity.  To get 1 [zettabyte] you would have to fill34.4 billion smartphones to capacity. If youput 34.4 billion Samsung S5’s end-to-end(length-wise) you would circle the Earth121.8 times.”[5]

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[1] Karen Hallenstein & Jane Perrier, ‘Big Data & Intellectual Property – Strategic Alignment for Commercial Success’ [Vol. 8, No.31, Spring 2015, 1] http://www.iicj.net/subscribersonly/15april/iicj4april-ip-karenhallenstein-telstra-australia.pdf Accessed 10May 2019.[2] Shaw, Jonathan, ‘Why “Big Data” Is a Big Deal’: [Harvard Magazine March-April 2014]http://harvardmagazine.com/2014/03/why-big-data-is-a-big-deal. Accessed 10 May 2019.[3] Munir, Abu Bakar and Mohd Yasin, Siti Hajar and Muhammad-Sukki, Firdaus, Big Data: ‘Big Challenges to Privacy and DataProtection’ (May 21, 2015). [International Scholarly and Scientific Research & Innovation 9(1) 2015]https://ssrn.com/abstract=2609229 Accessed 11 May 2019.[4] EMC Digital Universe with Research & Analysis by IDC, ‘The Digital Universe of Opportunities: Rich Data and the IncreasingValue of the Internet of Things’ https://www.emc.com/leadership/digital-universe/2014iview/executive-summary.htm Accessed 9May 2019.[5] Jim Haughwout, ‘The Expanding (Digital) Universe: Visualizing How BIG a Zettabyte Really Is’ (12 May 2014) http://lagrangianpoints.com/2014/05/expanding-digital-universe-visualizing-big-zettabyte/ Accessed 17 May 2019.

"Obviously, Big Data is huge.Yet by itself, Big Data isuseless."However, with such technologies as artificialintelligence, advanced computing power andsophisticated data analysis tools, our abilityto gather and store data in cost-effectiveways and then mine these data for economic,social, and commercial intelligence, BigData has become the new oil. And just as oil fuelled the twentieth centuryindustrial revolutions, data is fuelling theevolution and growth of the new digitaleconomy.

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In contrast to the digital economy, themodern economy comprises, and isdriven by intellectual property (IP) —that is, inventions, ideas, andinnovations. The rapid advances in technology andthe shifting of the world economy fromtangible (factories, trucks, warehouses,etc.) to intangible (goodwill, software,trademarks, etc.) assets combine to makeIP the most valuable form of asset in theworld right now — Google's logo, theworld’s most valuable trademark, isworth an estimated $44 billion or 27% ofthe firm's overall value, measured bymarket capitalisation,[6] and the world'smost valuable brand (Coca Cola) has anattributed value of $71.8 billion. IP laws protect the rights of creators andauthors of original works like literature,software, logos, designs, inventions, etc.In analysing and distilling actionableinsights from Big Data, IP plays a crucialrole—“from the patented hardware usedto collect and store data, to thecopyrighted software that organises andanalyses it. [Also], once a company decides to runanalytics, the end result is protectedunder IP laws as a trade secret.”[7]Let us delve deeper into the relationshipbetween Big Data and IP.

[6]Sean Stonefield, ‘The 10 Most Valuable Trademarks’ (June 5, 2011)https://www.forbes.com/sites/seanstonefield/2011/06/15/the-10-most-valuable-trademarks/#4e64e58736b8 Accessed 16 May2019.[7]Spathika Ram, ‘How Big Data can help in Understanding Intellectual Property’ (2015) https://suyati.com/blog/how-big-data-can-help-in-understanding-intellectual-property/ Accessed 17 May 2019.81] Article 2 (5), Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979)(Authentic text) https://wipolex.wipo.int/en/treaties/textdetails/12214 Accessed 19 May 2019.

Big Data andCopyrightOrdinarily, copyright laws protectsoftware and computer programs used togather and analyse Big Data. Originaldata analysis tools used to mine, clean,separate, and transform data can also becopyrighted in Nigeria and under the IPlaws of most countries. It is important to note that to be eligiblefor protection, a piece of software andother data analysis tools sought to beprotected by copyright must have beenreduced into writing—or expressed in afixed medium—and must possess somelevel of originality. In arriving at whatconstitute “originality”, the Berne Convention, to which Nigeria is a party,states that the “[c]ollections of literaryor artistic works such as encyclopaediasand anthologies which, by reason of theselection and arrangement of theircontents, constitute intellectualcreations shall be protected as such,without prejudice to the copyright ineach of the works forming part of suchcollections.”[8]

Because Big Data is essentially a streamof data, it does not exactly fit into thedescription of an “invention.” Yet itshould be noted that while Big Data isnot itself patentable, it is possible topatent the algorithm[9] used to analyseBig Data in some countries.[10] On the flip side, insights or intelligence—such as a new beverage recipe—minedfrom Big Data may also form the basis ofa patent application.

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Thus, like encyclopaedias and anthologies,Big Data may also be eligible for protection(as long as it is expressed in a fixed mediumof expression, possesses some level oforiginality in its arrangement or selection,and shows that reasonable human effortshave been expended.) The difficulty, from a practical point of view,rests on the fact that it is difficult, if notimpossible, to select or arrange Big Data,mostly because of its sheer volume, variety,and velocity, and also due to the fact thatBig Data is almost always automaticallygenerated in segment from varying sources.

[9] ‘Algorithm’ here refers to a unique, concrete series of steps or processes that have practical and real applications as against meremathematical algorithms which are just ideas.[10] In Nigeria, the Trademarks, Patents and Designs Registry refuses patent protection for software.[11] Joren De Wachter, ‘Big Data and IP business strategy’, (2013) http://jorendewachter.com/2013/11/big-data-ip-business-strategy/Accessed 21 May 2019.

Big Data and Patent

What is really interesting to note here is:just like artificial intelligence, theincreasing use of Big Data may alsochallenge our traditional conception ofIP. Patent, for instance, may become verydifficult to obtain as we move into thefuture. “The reason is simple: thenumber of patents does not double veryfast [enough, and] the exponentialgrowth of prior art means that theamount of information that woulddisallow the granting of a patent – andthat is any patent – also growsexponentially. So, unless the granting of patents alsogrows exponentially, the area oftechnology that is patentable will shrinkaccordingly.”[11] It appears that the major reason why theevolution and impact of Big Data has notbecome a big issue yet is because patentoffices have not begun to consider non-patented technology information anddata in assessing novelty or non-obviousness.

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[12] See, for instance, Albert (Prince) v Strange, ([1849] 1 M&G 25.[13] Ademola Adeyoju, ‘Intellectual Property as the Heartbeat of the Pharmaceutical Industry’https://infusionlawyers.com/intellectual-property-heartbeat-pharmaceutical-industry/ Accessed 23 May 2019.

Big Data and TradeSecretThe alternative to obtaining patentprotection is to keep the informationconfidential. Confidential informationthat gives an enterprise a competitiveedge is generally referred to as tradesecrets. Trade secrets may include such things aschemical compounds, dosage regimens,improved variations, processes, and — inthis case — a huge, undisclosedassembly of data. And there are severalforeign cases which suggest that tradesecret protection can extend to Big Data.[12] Trade secret is generally preferred topatent because trade secrets lastindefinitely, involve no registration cost,and do not require compliance withformalities, such as compulsorydisclosure to any government agencies.[13] The big ‘but,’ when it comes toprotecting IP using trade secret, is:where a process or innovation becomesknown to the public, there are usually noremedies and exclusive right is foreverlost. 

Because of this, some firms andbusinesses have been known to go toridiculous extent to protect theirinvention: Google’s constantly-evolving,top-secret search algorithm, theundisclosed ingredients for KentuckyFried Chicken’s original recipe, andCoca-Cola’s heavily guarded beverageformula (also known as Merchandise 7X)are famous examples of well-kept tradesecrets.

A CounterintuitiveApproach toManaging Big DataTraditionally and historically, innovativefirms and businesses have earned valuefrom their intangible assets bydeveloping IP strategies that entail theprotection and exploitation of theirinventions, brands, methods, etc. Onceprotected, the resultant IP rightsbecomes exclusive and can be enforcedby law against, literally, the rest of theworld, in case of an infringement orunauthorised use. But the exponential growth of Big Datanow puts this traditional approach atrisk. This is mostly because data is anunusual asset — it does not diminish ordeplete, instead it surges

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[14] Bill Schmarzo, ‘Data monetization and the economic value of data’ (2018) https://blogs.sas.com/content/sgf/2018/02/14/data-monetization-and-the-economic-value-of-data Accessed 25 May 2019[15] Supra, note 11.

and grows in abundance. Also, data doesnot wear out and it can be used across anumber of collaborative value-creationplatforms that facilitate its capture,refinement, and sharing acrossenterprises at near-zero marginal cost.[14] Following from the above, it is obviousthen that the value and promises of BigData are truly realised when it is sharedand allowed to flow and build up, asagainst when it is locked up in a virtuallake. As Joren De Wachter puts it: “the valueof a river is in having access to the flow,not control over the sources. Of course,the sources have some relevance, andcontrol over specific forms or aspects ofdata can be valuable for certainapplications. But the general rule is, or will be, thatgaining and providing access to data willbe much more valuable than preventingaccess to data.”[15] The idea of sharing is even more validwhen one considers that, when brokendown, Big Data is merely a pool of bitsof information available in the publicdomain. 

Companies who have expendedresources in pooling these bits ofinformation into one river earn somecompetitive advantage in giving accessto the pool by entering into datalicensing arrangements with otherentities, under which those otherentities will have access to a certainpool of data for a particular period oftime, for a specific purpose and in returnfor an agreed consideration.

ConclusionThe illimitable growth of Big Data isbound to change our IP laws andtransform the way enterprises conductbusinesses. As noted above, current IPlaws are not adequate to guard preciouspools of data available in the digitaluniverse, and nations and governmentsmay have to choose between expandingthe scope of existing IP laws ordeveloping entirely new IP protectionregime. Even as IP laws adapt and grow with thesweeping impacts of Big Data andrelated technologies, enterprises lookingto get more value from their wealth ofdata may have to adopt a generallycounterintuitive approach when it comesto managing and exploiting Big Data.

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The highest potential for return oninvestment appears to be in formingcommercial al l iances and strategicpartnerships and share data in away that has never been donebefore. [16]     So, instead of keeping dataexclusive and inaccessible , i t maymake more business sense to sharedata through a l icensingarrangement on an open platform.

[16] Andries van Staden, ‘Big Data: Cross-Industry Data Sharing’ (2016) https://www.innovation.group/en-za/news/big-data-cross-industry-data-sharing/ Accessed 24 May 2019.

In doing this , related issues ofprivacy and the purpose for whichBig Data is being mined would, ofcourse, have to be taken intoconsiderat ion.

C O P Y R I G H T : A l l r i g h t s r e s e r v e d . N o p a r t o f t h e p u b l i c a t i o n m a y b er e p r o d u c e d , s t o r e d i n a r e t r i e v a l s y s t e m o r t r a n s m i t t e d i n a n y f o r m o r b ya n y m e a n s w i t h o u t t h e p r i o r p e r m i s s i o n i n w r i t i n g o f Ǽ L E X o r a s e x p r e s s l yp e r m i t t e d b y l a w .   D I S C L A I M E R : T h i s p u b l i c a t i o n i s n o t i n t e n d e d t o p r o v i d e l e g a l a d v i c e b u t t op r o v i d e i n f o r m a t i o n o n t h e m a t t e r c o v e r e d i n t h e p u b l i c a t i o n . N o r e a d e rs h o u l d a c t o n t h e m a t t e r s c o v e r e d i n t h i s p u b l i c a t i o n w i t h o u t f i r s t s e e k i n gs p e c i f i c l e g a l a d v i c e . Ǽ L E X i s a f u l l - s e r v i c e c o m m e r c i a l a n d d i s p u t e r e s o l u t i o n f i r m . I t i s o n e o ft h e l a r g e s t l a w f i r m s i n W e s t A f r i c a w i t h o f f i c e s i n L a g o s , P o r t H a r c o u r ta n d A b u j a i n N i g e r i a a n d A c c r a , G h a n a .  

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ADEMOLA ADEYOJU