Under Swiss law, no specific legal framework currently applies to data and data transactions. The notion of non-personal data is not even defined. Ownership, access to and use of economically valuable data are only selectively addressed by statutory law. On the one hand, legal protection is granted to trade and business secrets under civil and penal law and to inventions, works (including software) and databases under intellectual property legislation. Regulatory exclusivity rights cover health and scientific data related to therapeutic products. On the other hand, exclusive rights to information and selective access to them are under scrutiny for their potential anti-competitive effects (FRAND licensing, excessive platform user data collection, self-preferencing data ecosystems).
The data economy makes a significant contribution to Switzerland's economic performance. A digitalizing health sector and the Covid-19 pandemic have intensified the discussion on access to and use of health data, promising research opportunities for the development of increasingly effective drugs and customized therapies.
Against this background, the Swiss Federal Council commissioned on 30 October 2019 the Institute for Intellectual Property (IPI) to draw up a report on access to non-personal data in the private sector, including an economic analysis and a legal framework for the access and use of non-personal data. The Federal Council took note of the report at its meeting on 26 May 2021 and mandated the IPI to implement additional support measures and to update the study on the data market in Switzerland.
The IPI report recommends not to introduce a property right for non-personal data or for databases. As far as private sector access to third party non-personal data is concerned, a solution via compulsory (FRAND) licences may not be suitable for all sectors, because of the complex implementation of such mechanisms and the potential anti-competitive consequences. Instead, forms of voluntary access to non-personal data, such as open data or shared data, and the provision of trusted data spaces may be promising. Such approaches require, however, a more detailed analysis.
In the EU, the legal framework for data transactions evolves swiftly: Over the last couple of months, the EU Commission has presented three core deliverables of its "European Strategy for Data", namely the Digital Markets Act, the Digital Services Act and – of particular interest in the present context – the Data Governance Act. The latter Act aims at both fostering and regulating the reuse of public sector data, as well as the activities of data-sharing intermediaries and "Data Altruism Organizations". Importantly, it extends to private and public, to non-personal and personal data alike, creating a cross-over legal framework and a complex overlap with the General Data Protection Regulation.
There is no doubt that Switzerland needs a comprehensive data governance strategy as well, not least because the data economy's contribution to the country's GDP is above the EU28 average, confirming Switzerland's role as one of the most dynamic digital and data economies in Europe. The relevance of data transactions is likely to increase with developments such as artificial intelligence, digital health and the blockchain technology.
For Swiss businesses, not only the ongoing work on such a domestic legal framework is of relevance, but also the legal developments in the EU. For instance, where Swiss businesses provide intermediary services which (potentially) address EU residents, they may become subject to the liability and conduct rules of the Digital Services Act. The same is true, with regard to the Data Governance Act, for the provision of data sharing services within the European Union (even if the respective Swiss company is in no way established in the EU). Subsidiaries of Swiss companies may be able to invoke rights under the Digital Markets Act against gatekeeper platforms.
The legal discussion in Switzerland is launched and Schellenberg Wittmer will regularly update.
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