Is data “property”?

Data is not, by its nature, property within the ordinary legal sense of the term.

Data may constitute property if it otherwise meets the requirements to be protected as copyright or as confidential information.

Copyright

Copyright may apply to data if it meets the requirements of being a literary work.  A literary work requires independent intellectual effort by an author.  Datasets may qualify for copyright protection on this basis.  However, it should be noted that any copyright in a dataset only protects the form of the dataset’s presentation and not the underlying facts or data.

Australia has not yet followed the lead of other jurisdictions in recognising a separate “database right” which protects the content of a database.

If copyright does subsist in a dataset, a party can take action against a third party for infringement of the copyright.  A claim for copyright infringement must involve the copying of a substantial part of the relevant work, and depending on the nature of the data and its copying, this may be difficult to prove.

Confidentiality

Confidentiality rights may subsist in data if a party treats the data as confidential.  When sharing that data with third parties, the “owner” should ensure that the third party similarly treats that data as confidential – in order that it maintains it status as confidential information.  This may not always be practical or possible, depending on the nature of the data and how it is intended to be used.