In October 2024, UK government Technology Secretary, Peter Kyle, said during his announcement of the UK’s new Data Use and Access Bill: “Data is the DNA of modern life and quietly drives every aspect of our society and economy without us even noticing.”

In our last article, we looked at how software is now a core intangible business asset, and how a company’s management could best defend it via registered IP rights, unregistered IP rights and other legal routes, such as trade secrets. Here, we explore the complex issue of using IP rights and other laws to protect data.

The data and information a company holds is without a doubt one of its most valuable assets. In general, however, there is no IP, or IP protection, in your company’s data as such.

That’s because raw data is factual.

As it is not the creation of a human mind, it cannot be protected via copyright (although how you organise it potentially can – see below). And you can’t patent data – although you may be able to, for example, patent a process for using and manipulating your data (such as an algorithm). But again, that wouldn’t cover the data itself. 

However, when data is organised into a database, things change – assuming that the organisation involved is more than simply listing the data. The raw data itself still isn’t copyrightable; but if there is creativity, skill and knowledge involved in designing the database, then the resulting database can count as a literary work and hence attract copyright, which is automatic. 

It doesn’t stop people collecting the same data; but it does mean they cannot store this data in a database that copies the structure and design of the one you have created.  

Also, if you have made a substantial investment in collecting, checking or presenting the data in a database, then the data in this database may be protectable through a specific kind of IP protection called Database Rights. Like copyright, this is automatic. 

If you have created a database which qualifies, then unauthorised copying of the cleaned, formatted and processed data is against the law. For example, this would make it an IP offence to ‘scrape’ data from a database which is covered by Database Rights. 

What companies can do with data they collect and process may be impacted by changes in legislation; for example, The Data Use and Access Bill, which is going through the UK Parliament at the moment, may affect how companies use data they collect. 

A trade secret is defined as confidential and commercially sensitive information about your business that has commercial value – so data and databases are covered (assuming the three rules in the paragraph above are applied correctly). 

As with anything you want to protect via trade secrecy laws, data and databases should be:

• Clearly marked as confidential
• Stored and catalogued securely
• Only accessible to those with a “need to know”

The biggest risk with any trade secrets concerns accidental or deliberate disclosure by employees, former employees or other confidants. The importance of trade secrets to the company should be made clear in employment contracts and backed up with company training.  

As with any trade secret, data can be shared with people outside the company; but if you plan to do that, then you must ensure that contracts and Non-Disclosure Agreements are in place, which cover things like how any data you share can be used, any fees for using it and penalties for unauthorised disclosure.

It’s essential to leverage all legal tools available to safeguard your data and databases. These include intellectual property rights, such as copyright and Database Rights, alongside contracts and strong data security measures.

To learn more about IP and understanding its value, visit Inngot.

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