6. What does the exclusion of “content” from the scope of data under Chapter II mean?

Recital 16 contains two elements that help with the interpretation of “content”. First, it explains that “content” is of textual, audio, or audiovisual nature and often covered by intellectual property rights.

Second, it explains that one should distinguish between markets for connected products and related services and markets for unrelated software and content. This suggests that “content” needs to be something akin to copyrightable material, i.e. the result of a creative process (even if the minimum threshold for copyright protection is not met) and typically destined for human appreciation or consumption. The reference to distinct markets indicates that the Data Act does not aim to replace existing legal protections and trading mechanisms for data that represent content. It rather seeks to open up markets for other types of data, such as measurements and non-creative output. For example, data holders of digital cameras capable of recording, transmitting, or displaying photographs or video are required to share readily available data, such as usage patterns, battery charging levels, timestamps, location, light levels, and event logs. They are in principle not obliged to share the audiovisual content itself. Similarly, users do not have the right to request access to and use of a motion picture/film displayed on a smart TV. However certain cameras, in combination with the appropriate software, can also act as sophisticated sensors, capable of interpreting pixels in view of recommending action. For instance, cameras in connected vehicles support collision warning and emergency braking systems, and cameras in agricultural machinery assess plant health and provide automated advice for fertilizer or pesticide use. The imagery generated by such cameras is not destined for human consumption and lacks creative elements. As such, this imagery should fall in scope of Chapter II of the Data Act.