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Aviation News The Big Data for MROs in test of the debate on the property of non-personal data

The Big Data for MROs in test of the debate on the property of non-personal data

Contribution by Jean-Jacques LE PEN, Founding Partner of Cabinet LPLG LAWYERS
14 DEC 2017 | 1093 words
The Big Data for MROs in test of the debate on the property of non-personal data
The interest of the development of connectivity and Big Data for the MROs, and more generally the aeronautical sector, is obvious for all the professionals. Aircraft systems have grown steadily, and many sensors and on-board computers send millions of pieces of information for each flight that must be collected and processed. The A380 has 300,000 sensors of which 24,000 are used for predictive maintenance, which requires processing 1.6 Giga Byte per flight. In addition to the obvious interest for the operating companies, the OEMs can also follow the evolution of their equipment and the MRO Companies can ensure a precise management of their interventions and their stock.

In aeronautics, as in other industrial sectors, access to data is an essential condition for the various operators who must, however, prior to their use, ensure the treatment according to their different needs. The importance of the mass of recovered data assumes that they are sorted, processed and crossed with previously recovered data using algorithms, according to defined parameters, according to the needs and objectives of the various operators.

There are processing systems distributed by specialized companies as well as interpretation and data management software, but various operators, and in particular the aircraft and engine manufacturers, have developed their own analysis softwares. Similarly, MRO companies have developed their own data processing and analysis system. At the Bourget Air Show 2017, AFI KLM E&M presented its Prognos applications, predictive maintenance solutions, one for engines and the other for aircraft.

It is therefore easy to understand that all operators in the aeronautics sector agree on recognizing the important value of data which can constitute a brake on their exchange, whereas this exchange of data creates additional values. In practice, the Chief Data Officer often considers that some data belongs to the operating companies, others to OEM and others to manufacturers or subcontractors. This practical approach often depends on the property of the source of emission (sensors, calculators ...) or of reception and treatment.

Thus, for the MRO, the operators conveniently settle the question of the collection and exploitation of the data according to their respective interests. The brakes or reluctance to exchange these data are thwarted by the provisions in the contracts, providing who can collect and process the information, and who can store and dispose of it during and sometimes after the termination of the relationship.

But the examination of certain contracts and the reading of various interventions in symposiums, suggest that all pragmatic solutions are in fact based on a wrong legal approach to the ownership of data. Indeed, there is no right of ownership of the data. Thus, to consider that these data are protected by copyright (Intellectual Property) is incorrect. Copyright protects databases but not the data itself.

This distinction is fundamental according to the concept of protection. Indeed, Directive 96/9 of 11 March 1996 on the legal protection of databases gives dual protection to these, by copyright and by a sui generis right, provided that investments are recognized as sufficiently "substantial" that is, the operator's work on the database from the raw information is real and essential. But in any case, the protection recognized by the Directive to databases is not intended to apply to the data itself.

Moreover, the issue of database ownership, which is recognized by the Directive, is still subject to serious opposition. For example, the European Parliament issued a recommendation to the Commission in 2016, removing the notion of ownership of databases. Contracts referring to the ownership of the data themselves may therefore be considered as posing a risk of legal instability in the event of disagreement that could lead to litigation. In practice, this risk is limited because of the operators' pragmatism, but we must not allow the idea that data are protected independently of the processing of their treatment. To be convinced of this, we only have to follow the debate currently aroused by the European Commission's consultation on the free flow of non-personal data.

As part of its strategy for the Digital Single Market, the European Commission announced in January 2017 the preparation of several initiatives for a European economy based on data. This is how the General Data Protection (GDPR) was established. For these data, there is no property right because it is considered that they fall under the fundamental right of the protection of privacy.

In order to encourage the free flow of data, the Commission launched a consultation and announced that it was studying a number of possibilities including the creation of a property right over non-personal data. This motivated some oppositions, especially since in the questionnaire it had published, questions specifically concerned the interest of creating an exclusive right on these data. Many answers to this questionnaire have already raised the difficulty of distinguishing between personal and non-personal data.

The National Council of Digital in response issued an opinion in April 2017 clearly marking its opposition to the creation of a property right non-personal data. The Council opposes the idea that the ownership of data would facilitate exchanges by emphasizing that the creation of values is actually done by crossing them in order to obtain new information. The Council therefore considers that it is not the property of the data that should be encouraged but think about the regimes of access and exchange of these data.

It also highlights the difficulties in determining a data ownership regime and their beneficiaries, by clearly asking who would own the data between the owner of a sensor and the owner of the object of measurement by the sensor.

The Council also emphasizes that operators could stipulate in the contracts dispossession clauses which constitute a barrier to the free flow of data.

As part of this discussion on how to share data, the example of the US Bureau of Transportation, which opened the data of US airlines on air traffic, should be highlighted. This decision is of course justified by the interest of the American public authorities and therefore the general interest, but it shows the limits of the sole use of data for the benefit of the airlines.

In the proposal for a regulation of the European Parliament and of the Council on a framework for the free flow of non-personal data of 13 September 2017, no reference is made to the ownership of these data. It is therefore likely that if the question of the ownership of non-personal data should be the subject of a legal debate it would most certainly be before the courts, in the case of litigation.

 
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