LIFTjournal 3/2020

Elevation made simple Portfolio 2020 WWW.SERAPID-LIFTSYSTEMS.COM Powered by RIGID CHAIN TECHNOLOGIE The question comes up repeatedly: who owns the data produced by a lift? The lawyer Hartmut Hardt explains the legal position on the basis of the European General Data Protection Regulation and describes what a solution could look like. U nder the German legal order, Article 14 (1) of the Basic Law grants and guarantees property ownership and its protection by the state. What laws specify the content of this guaran- teed property ownership? Paragraph 903 of the German Civil Code (BGB) specifies, “The owner of a thing may, to the extent that a statute or third-party rights do not conflict with this, deal with the thing at his discretion and exclude others from every influence.” This means that there can admittedly be re- strictions (e.g. as a result of nationalisation in times of particular crisis) or as a result of deci­ sions by the owner (e.g. leasing). But on the other hand – and this is the preponderant portion of ownership – the owner can freely dispose over his property and deal with it “as he thinks fit.” Ownership can apply to rights (e.g. intellectual property) or things. “Only corporeal objects are things as defined by law.” (§ 90 BGB). However, when it comes to ownership of things, jurists assume that they must possess some kind of corporeality/a physical embodiment. Computer data are not things in the meaning of the BGB. 1 DATA OWNERSHIP This brings us to the root of the problem. Who then owns the data? Data are not per se an intel- lectual creation that would for example be pro- tected under copyright, but rather electronically available technical information. But since electrical energy as such is not a thing either, 2 it must be borne in mind with regard to “data production” that there is no statutory provision regulating data ownership assignment. The German Criminal Code or Copyright Act do make provision for certain intellectual property rights to data. But data that arises during the remote maintenance of lifts, for example, is “fair game.” TYPICAL CASE CONSTELLATION If, for example, a lift produces data, one legal view is that all data material arising in connection with the operation of the lift belongs to the owner of the lift, since he bears all of the costs incurred with operating the lift. If an external lift maintenance company is commissioned, it could invoke the argument that the owner who engaged it is not concerned with the data gained and their maintenance-related recording and management, but rather with the safe operation and availability of the lift. Con- sequently, the maintenance company might lay claim to the data trove itself. Finally, the manufacturer/builder might be able to claim that without its contributions and knowledge no data would be collected at all or at least not in the quantity and quality given; hence, it is so vital in connection with the product deve- lopment that the data should be assigned to it. CONTRACTUAL ARRANGEMENTS Given this conflicting situation, independent regulation of the matter through appropriate contracts is advisable. You need a good contract! The following must be regulated • data generation, • data recording, • data storage, • data usage, • data distribution, • data release, • data transfer • and data utilisation. An agreement must also be reached that pena- lises misconduct or breaches and takes other aspects into account, such as confidentiality vis- à-vis third parties and the protection of the data. CONCLUSION It is up to the lawyers to exercise their creativity in formulating the provisions to ensure that th- ey correspond to the given requirements of the state of the art. Further development of legal doctrine is required, since achievements like robotics, deep learning, artificial intelligence, autonomous systems, virtual assistance and in particular Industry 4.0 are no longer science fic- tion, but have become part of our life and as a result also part of our legal order.  ⇤ The author is a lawyer and member of the Board of Directors of VDI Gesellschaft Bauen und Gebäude- technik. 1 Constance Regional Court, NJW 1996, 2662 2 Reichsgericht in Strafsachen, volume 86, page 14 09 PERSPEKTIVEN  PERSPECTIVES