Conclusions of the report

The data economy as a whole makes a significant contribution to Switzerland's economic performance. Our country performs relatively well in this area compared to the other European countries. The markets for raw non-personal data are also developing in the country. They do not appear to have any obvious and significant market failure in the "B2B" area. The challenges in unlocking the full economic and societal potential of non-personal data vary greatly depending on the sector studied. Accordingly, there is no one-size-fits-all solution suitable for the specificities of the non-personal data market. Furthermore, the companies are more in favour of supplementary support measures than comprehensive legislative initiatives.


Overall, the data economy contributes significantly to Switzerland's economic performance. Our country performs relatively well in this area compared to the other European countries. The markets for raw factual data are also developing in this country. They do not appear to have any obvious and significant market failure in the "B2B" area. The challenges in unlocking the full economic and societal potential of factual data vary greatly depending on the sector studied. Accordingly, there is no one-size-fits-all solution suitable for the specificities of the factual data market. In addition, businesses tend to advocate complementary support measures rather than comprehensive legislative initiatives.


Swiss law knows neither a property right in non-personal data per se nor a sui generis right for databases. However, current law does contain some norms that give the owners of non-personal data (and also databases) a legal status that comes close to a property right in such data. Moreover, the risk-benefit ratio does not favour the introduction of a property right in non-personal data.


The choice of a single, horizontal solution with compulsory or FRAND licences, thanks to which the private sector gains access to third party non-personal data, is also not a desirable approach, notably because of the complexity of implementing such a mechanism. The introduction of such a system could possibly be considered for specific sectors. In the area of "B2B", compulsory licences under competition law also do not offer a viable solution.


Voluntary forms of access to non-personal data, such as open data, shared data and the provision of trustworthy data spaces, have potential for development. However, the conclusions on this should be awaited in the report by OFCOM and the Directorate of International Law. These two authorities were mandated to identify the technical, legal, economic and social conditions for the creation and support of trustworthy data spaces. On the basis of their report, the competent authorities in the specific areas will be able to assess the legal framework and the instruments for improving access to non-personal data. Until then, access to non-personal data could be improved via complementary support measures. The IPI is continuing its efforts in this area in cooperation with the private sector and other competent authorities.

 

IPI recommendations

 

Regarding the data economy

 

The IPI advises that the study "Analysis of the data market" be renewed and resubmitted to the Federal Council by the end of December 2025. With the new study, the development of the Swiss data economy can be assessed and the situation of our country can be compared again with the situation of European countries. The preparation of this study would again be taken over by the IPI.

 

With regard to the legal framework for non-personal data

 
  • The IPI does not advise introducing a property right in non-personal data. The analysis has not identified any market failure and the legal framework is judged to be sufficient. Moreover, the introduction of such a right could harm legal certainty and hinder data trade.
  • The IPI does not advise introducing a sui generis right on databases. The analysis has not identified any market failure in this area and the legal framework is judged to be sufficient. Moreover, the introduction of such a right could harm legal certainty and hinder data trade.
 

With regard to the introduction of horizontal systems with compulsory and FRAND licences for access to non-personal data

 

The IPI advises not to introduce a horizontal system with compulsory or FRAND licences for access to non-personal data. The analysis has not identified any market failure and the legal framework is deemed sufficient. A horizontal system with compulsory or FRAND licences for access to non-personal data would be TRIPS compatible, but the introduction and implementation would be extremely complex. Moreover, it has not been proven that such systems can fulfil their purpose. Moreover, a decision in favour of this path would be Switzerland going it alone in Europe.

 

With regard to complementary support measures

 

The IPI advises complementary support measures to increase legal certainty and reduce transaction costs. These support measures may take the form of model contracts, checklists, overview documents on the legal framework for non-personal data, or promotion of the development of industry-specific best practices, etc. In this context, the IPI already provides Swiss SMEs with model contracts to improve cooperation in this field and the exchange of non-personal data. The IPI will continue work in this area together with the other agencies concerned and the private sector.

 

With regard to Open Data and Shared Data

 

In this area, the conclusions in OFCOM's report and the Directorate of International Law are awaited. These will identify the issues that could indicate state intervention in the matter of "shared data spaces".

 

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