Buildings are getting smarter, and that includes roofs. Increasingly, smart sensors are being installed on the roof in addition to roofing, collecting data (such as humidity, temperature and movement). This provides insight into the current condition of the roof and enables a maintenance contract to be offered, whereby maintenance is performed (automatically) when the condition of the roof requires it. Data is crucial for this. In this article, we reflect on who this collected data actually belongs to and give concrete tips on how to deal with data when using smart sensors.
Smart sensors and the data collected
When smart sensors are offered together with a maintenance contract as a service, the provider, as the owner of the smart sensors, will have access to the data and will therefore believe it owns the data. The provider will want to determine whether and, if so, to what extent the roof owner may use the collected data. On the other hand, the roof owner may also believe he owns the data. After all, the data is collected on his roof, the data relates to his use, and the owner pays for use. Who is right? The answer is: neither party.
Ownership of data does not exist!
After all, there is no such thing as ownership of data! For ownership, the law requires that it be something "material," such as a roof tile or construction scaffolding. Both are tangible and therefore material. Data is not: it is an intangible set of digital zeros and ones. That the data can be accessed via a computer, for example, makes only the computer tangible and not the data. The lack of ownership of data has legal consequences. For example, in principle, it is not possible to sue a third party who uses the data without permission. For example, if a competitor uses the data without permission, that data cannot be recovered, just as you can recover a bicycle from a bicycle thief.
So how do you protect data?
Given the lack of proper legal protection for data, it is important to make proper contractual arrangements. Those agreements can simply be included in the maintenance contract. Indeed, in the contract you can agree who is the "owner," or rightful claimant, of the data. Contract law is so flexible that you can make very different and specific agreements about this as parties. The following points, among others, are relevant here:
- specify the data flow: who generates data, in what way and which parties are involved?
- Which parties have access to what data?
- Is data confidentiality important?
- Which party is the contracting party entitled to the data?
- Which party obtains a right to use the data, for what duration and what restrictions are placed on it. For example, may the data be shared with third parties?
- when there is processing of personal data (for example, when the personal data of the roof owners are processed for maintenance), the General Data Protection Regulation (AVG) applies and, among other things, it is necessary to determine which party is the processing controller and it is advisable to set up a data breach protocol.
To reinforce the agreements, it can be agreed that violation of the agreements will result in a contractual penalty, in addition to the right to damages.
Make contractual agreements!
When offering a maintenance contract that uses smart sensors to determine whether maintenance is needed, it is crucial to have a clear policy around data. So make contractual agreements about this in the maintenance contract.
