European Union: Adopted Council approach on EU Data Act including data protection and access measures

On 24 March 2023, the Council of the European Union adopted its position on the Data Act (Regulation on harmonised rules on fair access to and use of data). In particular, the Act aims to ensure proportionate participation in the value of using data between businesses, consumers and public bodies. The Act seeks to facilitate access to data and review the rules on the legal protection of databases, to balance the rights to access data and the incentives to invest in data within the current data protection rules. The Act would provide a framework for the accessing and sharing of data. Specifically, the Act sets out under which circumstances data may be used to produce value, with a focus on data access rights. Under the Act, entities could decide what data can be shared, and the manufacturer could choose not to make certain data available "by design". Furthermore, when companies draft data-sharing contracts, the law aims to rebalance the negotiation power in favour of SMEs by shielding them from unfair contractual terms imposed by companies in a significantly stronger bargaining position. The Council amended several parts of the Commission's proposal, including a more precise definition of the legislation's scope, clarifications on the interplay between existing legislation, such as General Data Protection Regulation, the protection of trade secrets and intellectual property rights, compensation guidelines for making data available and dispute settlement mechanisms. The Council will now start negotiations with the European Parliament on the final version of the Data Act.