The European Commission, in its Communication of 02.07.2014 (COM 2014 – 442 Final) defines Big Data as “large amounts of different types of data produced with high velocity from a high number of various types of sources. Handling today’s highly variable and real-time datasets requires new tools and methods, such as powerful processors, software and algorithms.“. In this perspective, the development of the physical and virtual infrastructures necessary to effectively carry out the above analysis activities, is of fundamental importance. This scenario of technological development has opened numerous debates on the intellectual property front, linked, above all, to find a balance between the protection of operators’ competitive advantage and the sharing of results, as main stimulus for the development of the sector. As well known, the computer programs are mainly protected by copyright; this one protects, in particular, the software, considered as a product of programming, the latter assimilated to an intellectual activity. However, this form of protection does not offer considerable stability, for two main reasons.
The first is the risk of the so-called “reverse engeneering“, which consists of going back from a program to its flow chart and, by this way, creating an entirely new one, which however performs exactly the same functions. Faced with this type of operation, copyright appears to be an unsuitable protection because it protects the software like a literary opera, warding only the “source code”, namely the set of instructions of the programming language; therefore, in presence of a different source code, even if the final result is the same, there is no copyright infringement. The other critical node is the requirement of originality that can easily be denied whenever the instructions in the code are required by the function. In America, from this point of view, an exemplary judgment of a greater rigidity of the Supreme Court, is the sentence of 21.03.1991 in the case Feist (Feist Publications, Inc., v. Rural Telephone Service Co., 499 US 340 – 1991 ); on this occasion the level of creativity required for software protection has been raised, thus leading to the overcoming of the Anglo-Saxon “sweet of the brown” approach, in which a database was primarily protected based on the effort economic profit and the consequent asset value of the investment. Starting from these copyright protection limits in software, in America people began to look carefully at patent law; in fact, unlike copyright, the patent on a software invention provides a broader protection, ranging from the programming language to the functionality of the algorithm, without limiting only to the source code. To rule the software patents’ granting procedure, in 2014 the Supreme Court issued the sentence in the case Alice (Alice Corporation Pty. Ltd. of CLS Bank International); on this occasion it was established that the patentability condition for this type of technology is that the invention should not be limited to contemplating a mere abstract idea but have to demonstrate a further inventive phase characterized by an applicative profile; in other words the possibility of patent protection is recognized, provided that the invention belongs to the technical world.