The conceptual framework of the data economy also requires an understanding of the division of data into different layers. This may have great legal significance.
From a legal perspective, one of the most important issues of the data economy is undoubtedly the civil-law status of data (as we discussed in another article). However, it crucial to distinguish between different data layers. It turns out that when talking about “data,” we may be referring in practice to different dimensions of data.
Three layers of data
Data are a form of information, so like any information they can have at least three different layers:
- A physical layer in the form of the medium or carrier on which the data are stored, which can be either a traditional paper-based medium or, for example, a medium in the form of a server on which digital data are stored
- A syntactic layer in the form of the technical recording format (e.g. characters, code, bits, binary system)
- A semantic layer which conveys the meaning of the given information.
Does this division have legal significance?
This division is not just an intellectual nuance, irrelevant to the legal dimension of data. On the contrary, from a legal perspective, these data layers may be crucial.
The physical layer of data, i.e. the medium on which the data are recorded, is a “thing” within the meaning of civil law. It may constitute “property.” However, this does not automatically mean that the owner of the data carrier becomes the “owner” of the data in semantic terms. Very often, an entity authorised to use a data carrier (e.g. a cloud solution provider) will not have rights to the data stored on that carrier. As a result, when establishing data rights, it is essential to precisely define the data layer which is to be the subject of those rights. The content of the rights relating to different data layers will also vary. It is evident that in practice, different layers of the same data may also have different rightholders. We will illustrate this in more detail in subsequent articles in this series (including an article on data protection).
The legal relevance of the distinction between the syntactic and semantic layers of data is intriguing and still little researched. This distinction may be particularly important under the EU’s General Data Protection Regulation. A fundamental question arises whether the processing of personal data within the meaning of the GDPR relates only to the semantic layer or also the syntactic layer. The dilemma is that data processing only in the syntactic layer (e.g. verification of the correctness of the data recording format) will often not lead to deciphering of the meaning of the processed information. This topic will also be discussed in more detail in a separate text.
Krzysztof Wojdyło, adwokat, New Technologies practice, Wardyński & Partners