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Michael Mattioli

This chapter examines the somewhat jumbled relationship between data and intellectual property law, with a special focus on copyrights, patents, and trade secrets. Although these bodies of law are deeply concerned with and influenced by new technologies, they offer limited protections to the new industries forming around data today. Traditional copyright protection for data and databases is relatively thin, and the patentability of algorithms that can process data is somewhat unpredictable under current American jurisprudence. Meanwhile, although data may be the subject of trade secret protection, liability under this body of law extends only to those who wrongfully use or disclose valuable secret data. Responding in part to the limitations of traditional IP law, European policymakers in the 1990s enacted a special form of sui generis rights for databases and continue to explore useful new policies today. Despite repeated efforts by US lawmakers, no similar protections have been enacted into American law. In addition to exploring how the law applies to data, this chapter briefly highlights how new industrial and commercial uses of data connect with the policies underlying IP law—most significantly, the twin goals of promoting innovation and disclosing technological information.