Data strategies and development of trade in data: three policy approaches

Abstract

The importance of data in the economy is no longer a debatable issue; it is taken for granted. Upon the recognition of this fact, many countries have been solving the problem of improving the quality and availability of data through the development of various models of data sharing for several years. Active academic and business discussions on data policy and governance have finally borne fruit: several jurisdictions have adopted national data strategies (or similar documents). However, does the existence of a data strategy at the national level indicate that the best conditions for the development of data trade and data markets have been created? How is the strategic approach conducted at the state level related to the actual availability of data to private businesses? Different jurisdictions define their data governance priorities differently, and the approaches outlined in the strategies are (or are not) reflected in subsequent “direct application” legislation. This article is devoted to a comparative analysis of strategic documents in the field of data governance of the European Union, United Kingdom, and Russia in the context of their interrelation with the laws that directly regulate the legal regime of various categories of data for commercial turnover. The first part of the paper will provide a brief overview of the data governance documents of the jurisdictions in question: the European Strategy for Data, the UK National Data Strategy, and the Russian national projects “Digital Economy” and “Data Economy,” with a focus on the differences in goal-setting and their potential impact on the further development of both data legislation and digital markets in general. In the second part of the paper, the EU, the UK, and Russia, respectively, will be analysed in relation to "tactical" legislation that has been adopted or is planned to be adopted in the wake of the said strategic documents. The comparative analysis will focus on those acts that address the regulation of data in commercial circulation, its accessibility for private business, and private business obligations related to data. In particular, the impact on the data market of the EU Digital Package will be discussed and the recently adopted Data Act will be contraposed with the provisions of a similar initiative of the UK Data Protection and Digital Information Bill 2. Also, this section will touch upon the issue of recognizing data as a legal object under the laws of the relevant jurisdiction and the existence of a general regulation applying as lex generalis to any data category. Finally, the last part of the article will be devoted to comparing the provisions defined at the strategic level with the changes made to regulating data in commerce. Considering this analysis, a policy model for data governance based on the balance of interests of three actors: state, businesses, and individuals, will be described. Based on this approach, an attempt will be made to determine the actual priorities of the legislator for each of the jurisdictions under consideration and their potential impact on the further development of the data markets in these areas. The article demonstrates that compared jurisdictions differ substantially in terms of the consequences of the chosen regulation path. While Russia may improve state services based on enhancing data availability, it does not aim to create a commercial market for data. Despite increasing data availability, the EU imposes restrictions on data holders. Extensive European regulation may impede data-driven businesses due to high compliance requirements. Conversely, both in the strategic documents and legislative proposal, the UK aims to create a business-friendly environment via precise and unburdensome regulation. Thus, the UK approach is the most effective for enhancing data trade.