Our paper advances two arguments. First, we argue that the existing law and data-political economy in the European Union perpetuates commodification of open data. Instead of enabling a remix culture for shared knowledge production, legal frameworks enable capture of open data by actors with more infrastructural power. This excludes individuals and communities (i.e the ‘real’ data generators) from deriving value out of open data.
We illustrate this argument through three ‘rules-in-use’ for the open data ecosystem. At the constitutional level of regulatory law, literature from critical data studies illuminates the gaps between the ‘imagined’ and the actual beneficiaries of open data initiatives. At the collective choice level where open data and content licenses serve as private legal ordering, license terms are misused during data re-use for training AI models. At the operational level, we discuss commonswashing by Big Tech platforms, for e.g., Google’s Data Commons project.
Second, we propose law and policy solutions that recognise the relational and ecosystemic nature of open data. We argue that to unlock the potential of polycentricity, we must recognize the multi-faceted role played by the state in an open data commons – as an enforcer/sanctioning authority, but also provider, consumer, endorser and curator of open data. We also argue that because data re-use is impacted by copyright, privacy and data colonialism, existing open data and content licenses need to include more community preferences. Finally, we argue that the enforcement of such community preferences requires new legal institutions, to ensure more equity in the distributional impacts of open data. These suggestions can shift the perspective from governance of open data as common property, to governance of the open data ecosystem as a commons that preserves democratic values.
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