In this article, we consider the ownership aspects of smart building data, provide concrete tips on how to handle data in a smart building and discuss whether or not this data can be protected.
Date: July 22, 2021
Modified February 05, 2024
Written by: Noreen Sturris
Reading time: +/- 2 minutes
A smart building is more than just a building in which to live or work. In a smart building, smart installations using software work for you. By applying this innovation, a smart building can, for example, adjust the temperature to specific conditions (such as the weather or the number of people in the building) or the intensity of use of installations can be monitored, allowing maintenance to be planned very efficiently. In a smart building , construction and ICT come together.
But what about the data that a smart building actually creates, such as data on the number of people present, temperature history, ventilation routine and maintenance needs of installations? In many cases this data can have a certain commercial value, because this data in itself (or after analysis) provides insight into, for example, consumption of energy, the creation of an optimal living or working climate and the efficient planning of maintenance. This data is therefore not only important for the owner or user of the smart building, but also, for example, for the supplier of the installations and software. Does anyone own this data, and if so who? In this article we consider the ownership aspects of smart building data, give concrete tips on how to deal with data in a smart building and discuss whether or not this data can be protected.
Exactly what data includes is not defined in the law. Thus, data as a whole is in principle not protected by law. Also, data often does not qualify for protection by intellectual property rights (such as copyright or database law) and data does not seem to be protected in property law either. This means that ownership of data, from a strictly legal point of view, does not exist! Claiming the data by the person who thinks he owns it is therefore in principle not possible. So even reclaiming data because it is used by a third party without permission will often be difficult. In practice, this can sometimes lead to problems, because data is often worth money.
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Suppose an owner of a smart building buys an ingenious climate control system that monitors exactly how many people are in the building to apply climate control and ventilation requirements based on this information. By commissioning, the system generates a large amount of data and adjusts climate control accordingly. This data is relevant for the owner of the smart building for the functioning of the heating and ventilation, but also for the supplier of the system. Based on this data, the supplier can further adjust or develop the system, or even resell the data to an energy company.
The mere agreement between the owner of the smart building and the supplier regarding the system will often not provide a sufficient basis for the supplier to access or use this data. The moment the supplier wants assurance that it has access to this data, it will have to agree in writing with the owner of the smart building. For example, the agreement may include a provision in which the supplier obtains the right to periodically read the system (remotely or otherwise).
The owner of the smart building will also want to define access to and use of the data produced by the system. For example, contractual agreements must be made about times of system maintenance and whether, and if so how much uptime is guaranteed by the supplier. After all, the owner of the smart building will want to avoid losing access to the data.
As mentioned, the data is essential to the functioning of the smart building. For example, the owner of the smart building can also make good use of this data to determine where and how he should purchase his energy. It is therefore in everyone's interest to make good contractual agreements regarding the data. The following points, among others, are relevant here:
To reinforce the agreements, it can be agreed that breach of the agreements will result in the forfeiture of a contractual penalty, in addition to the right to damages.
Data is not completely outlawed even without further contractual agreements between parties. Indeed, in some cases, data can be designated as a trade secret under the Trade Secrets Protection Act (abbreviated to the "Wbbg"). Data then has the same protection as a trade secret under the Wbbg. This law offers holders of trade secrets the right to take action against the use of illegally obtained trade secrets. The data must qualify as a trade secret within the meaning of the Trade Secrets Act. Pursuant to Article 1 of the Trade Secrets Act, a trade secret exists if the information in question a) is secret; b) has commercial value; and c) is subject to reasonable measures to keep it secret. Thus, a real estate developer who owns a smart building may be able to sue under the Wbbg for breach of data if it qualifies as a trade secret. More concretely, a supplier that performs maintenance work on the system and in the process also analyzes the data for its own purposes could infringe on trade secrets (data) of the real estate developer. To avoid such situations, parties would do well to make further agreements on this matter as well.
If data qualifies as a trade secret, the holder of the trade secret can then take action against unauthorized use and seek a preliminary injunction through the preliminary injunction court to stop, or prohibit, the use or disclosure of the trade secret. Such an injunction can also be sought in proceedings on the merits. In addition, total or partial destruction of, for example, the documents, objects or electronic files that unlawfully contain the trade secret can be claimed.
To avoid disputes between parties about the rights to the data, it may be wise for parties to make further agreements about this. For example, the parties may acknowledge that the data is a trade secret, and how this should be handled (e.g. confidentiality). But even outside the scope of the Wbbg, the purchase or maintenance agreement for the system can specify how the data should be handled. It can be stipulated that this data does not belong to the supplier, or that it may be used or provided to third parties under certain conditions.
business owners who wish to pursue a clear policy on data would do well to make systematic contractual agreements on the subject. If valuable trade secrets are involved, the Wbbg can be involved and, for example, contractual confidentiality can be agreed, but it is also wise to make further agreements about the use of data outside the Wbbg.
Do you have questions about your data, or want to protect it? Then contact one of our smart buildings specialists Valerie Lipman, Noreen Sturris or Joost van Dongen.
This page was last updated on August 8, 2023.
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