On Data Product Use Rule

This dissertation is a research on the rules of using data product in the context of digital economy.Data product refers to a big data derivative based on big data technology and formed by collecting,processing,and processing massive amounts of original data for the purpose of mining and recreating data information.With the development of data technology,the role of data in the production of the national economy has become increasingly prominent,and the use and transaction value of data product has increased.Existing research focuses mostly on the legal issues caused by the collection and use of personal data,but there are very few articles on data product.However,at present,China has incorporated data into its production factors and regards data-driven development as a national development strategy,and data product plays an important role in it.It is in this context that the author chooses "data product" as the topic of the doctoral dissertation.Regarding the use of data product,on the one hand,the negative impact of data usage on personal information and privacy needs to be solved urgently,on the other hand,data product with significant economic value,which have not been allocated by law in advance,leading to the use and transaction of data product locked.This dissertation takes the data operator’s perspective as an entry point,trying to use the data use chain as a clue to construct a data product usage rule framework,and coordinate the interest relationships among data subjects,data operators and other data users.In the choice of data product protection mode,this dissertation discusses and compares the current representative empowerment mode and behavior regulation mode.These two models provide different institutional approaches for data product according to their own characteristics.This dissertation believes that the current discussion of rules intended to adjust the use of data products should return from the empowerment model to the behavioral regulation model,which can better adapt to the protection needs of data product in the context of the digital economy.On this basis,with the use of data product as the node,relying on the existing data protection framework,this dissertation establishes the rules for the use of data products beforehand,and uses the C&M Framework as the theoretical basis to construct the rules for the post-event liability of data product.This framework can effectively adjust the three pairs of main relationships involved in the use and transaction of data product: first,the relationship between data operators and data subjects,that is,how to handle the control power and the distribution of use benefits of data product and personal data;second,the relationship between the data operators and other data users,that is,how to balance the competitive benefits and data protection responsibilities brought by the use of data product;third,the relationship between the data subjects and other data users,that is,how to coordinate the control boundary of the data subjects with their personal data,and the user’s responsibilities and obligations to the data subjects.Finally,on the basis of observing and understanding the actual demands for the use of data product in China,the author makes suggestions on the improvement of the data product protection system.In addition to the introduction,this dissertation is divided into five chapters with a total of more than 190,000 words.In the first chapter,the author determined the basic defination of data product from the protection framework of personal data,the relationship between personal data and data product,and the usage of data product.Due to the natural connection between the formation and use of data product and personal data,the protection of data product cannot be separated from the constraints of personal data protection framework.There are two main modes of data protection in countries around the world.One is to comprehensively strengthen the basic rights of individuals to control their personal data;the other is to protect privacy and detect the specific impact of data usage on data subjects mode.This leads to the regulation of the use of data product based on the dichotomy of personal data and non-personal data based on the "identification" of data subject.With the development of data technology,the boundaries between the two have gradually blurred,and the use of data product has also shown new characteristics.Data product is processed by big data technology to form a new information form,which can be distinguished from the function and content of the original data.This chapter introduces Shannon’s information theory into the analysis of data.This theory holds that when information is transmitted or used,its form can change,but the information entropy that represents the total amount of information remains unchanged.According to this,data product mines and recreates the original data,obtain new information that exceeds the total amount of original data,and break through the information boundary of traditional personal data use.Therefore,an independent system of rules should be established for the protection and use of data product.Chapter 2 of this dissertation discusses the initial allocation of data product.The author believes that data operators should enjoy the property rights of data product,and the legality of collecting and processing raw data is its foundation.This can be based on the power of data subjects over data interests under the theory of information self-determination,and data operations under the "consent rule".The contractual benefits of the data operators and the labor value of the data operators have been demonstrated.On this basis,the author demonstrates the necessity and feasibility of protecting the property rights of data products from two aspects: incentive mechanism and free competition.The third chapter of this dissertation discusses the protection mode of data product.From the perspective of the current situation of data product protection,the current theoretical research and policy-oriented empowerment model which is to confirm the property attributes of data products and give data operators exclusive.In judicial practice,a large number of competition laws are being used to resolve disputes.Data product is protected by a behavioral regulation model.The competition law protection model represented by the anti-unfair competition law has its existing preset paradigm,and the competition relationship in the use of data product and the judgment of unfair competition behaviors have their own limitations.Based on a detailed analysis of the impact and deficiencies of the two models,the author believes that starting from the attributes of data product,the characteristics of industrial development,and the actual application value,the behavioral regulation model with competition law as the core is a more ideal protection model for data product.The focus of data product regulation should return from the empowerment model to the behavior model,and the existing system should be improved and upgraded.Since the law has not made effective prior allocation of data product,the use of data product has become a fact.For this reason,in Chapter 4,this dissertation chooses to the use of data products as a node,and designs a set of rules framework,which is divided into pre-use rules and post-liability rules.The pre-use rules are mainly constructed in the form of compliance review to regulate the data use behavior of data operators and other data users.First,standardize the use scenarios of data product,limit the necessary information that needs to be collected in different scenarios,ensure that the privacy interests of data subjects can be clearly evaluated by law,and at the same time retain a free use environment for data products under regulations.Second,standardize information disclosure on the use of data product,requiring major use and transaction changes of data product to be disclosed in accordance with certain standards.On the one hand,it guarantees the right and freedom of data subjects to "exit" data product,and on the other hand,it helps data product to form effective transaction price in the market circulation process and stimulate the vitality of the data market.Third,standardize the update and provision of public information of data product.Due to the impact and value of data product,great changes will occur with technological progress and increased use,which is extremely unstable.Timeliness,which is an inevitable requirement for maintaining the effectiveness of standardized information disclosure.Fourth,other users of data product are required to provide equal and adequate protection of data product,and data operators are required to authenticate the level of protection of data users.Under the effect of these rules of use,third-party data users will no longer need to obtain dual licenses from the data subject and the data operator when using data product.They only need to legally obtain a license to use the data product,and the data operator is acquiring the data product.At the same time,it bears non-transferable data protection obligations to the data subject,and bears joint and several liability with third-party data users.The post-liability rule focuses on the issue of legal remedies for the use of data product.The author believes that the legal issues arising from the use and circulation of data product contain two important factors: data operators’ right to profit from data product and the impact on data subjects,and there is objectively a need to damage distribution.Therefore,the analysis framework provided by the "C&M Framework" for the protection of legal interests is the most appropriate.Adjusting the use of data product through responsibility rules will lead to a third-party authority to achieve a balance between data protection efficiency and goals,and to examine the benefits of data product from the perspective of responsibility allocation.The post-liability rule,as a means of ex-post regulation of data product,interacts with the pre-use rules,forming a regulatory framework for the use of data product.The fifth chapter of this dissertation is the improvement of Chinese data product protection system.First of all,China currently adopts a typified protection model for data product.The "Civil Code" includes "identifiable" personal data into the category of personal information protection,and at the same time,it separately retains the "data" that has the meaning of Property Rights Clauses,which leaves institutional space for the establishment of rules for the use of data product.At the same time,the existing data protection framework under the dichotomy of personal data and non-personal data has the limitations of limited personal data rights and ambiguous status of data product.To this end,it is necessary to clarify the protection of the property rights of data product at the legislative level,standardize the disclosure of data use information,set up reasonable use of personal information and government data,and accelerate the generation and circulation of data product.Finally,China also needs to clarify the legal protection model of data product.It is a more feasible protection model to adopt a similar way of protecting trade secrets and to regulate the use of data product through anti-unfair competition laws and regulations.