| The Internet has brought surprises to the world as well as new social problems.Commercial applications of big data arise together with continuous technology iteration.Data have become the "oil"that drives the development of the economy.Computer engineers use data to create a network for business use.At the same time,data employment caused practical and theoretical problems.Among them are data leakage,unfair competition,network sovereignty maintenance,national security.Domestic legislation calls to regulate data flow.Hence,it was adopted The National Security Law,The Cyber Security Law,The Personal Information Protection Law,and other regulations.Regardless of that legislative framework,the scientific agenda has a lack of appropriate research about the specific enterprise data.Therefore,this dissertation focuses on the legal regulation of enterprise data and its definition interpretation in the theory and proposes corresponded research introduced in seven chapters.The first chapter is the introduction and the last chapter is the conclusion.The second chapter is "The definition of enterprise Data".Although the academic circle is familiar with the concept of enterprise data,because there are studies in this area,but it is solely generally explained and not uniformly defined enterprise data.Given this,the chapter discusses what enterprise data is.On the one hand,it clarifies this critical and important theoretical issue.O n the other hand,it lays the foundation,the boundary,and the object to be discussed in the dissertation.To be precise,a chapter is divided into three parts.The first part is "gradually independent enterprise data and its characteristics".In the process of combing the development history of data issues,this part clarifies that at present,enterprise data has become an independent research field,and presents the characteristics of wide scope and unclear definition,large disputes over legal attributes and great influence by policies.The second part is "The definition models of enterprise data and their evaluation".This part sorts out the several ways of defining enterprise data in the current academic circles and their problems.The third part is "problems in the definition of enterprise data".This part clarifies the controversial issues commonly existing in the current academic circles,analyzes the logical relationship between enterprise data and personal information,and whether economic interest is a core element of enterprise data definition.The forth part is "The discussion on enterprise data".This part analyzes the four core subjectivity characteristics of enterprise data,controllability,and content.Based on that,the dissertation proposes the concept of enterprise data.It is stated enterprise data is a data set controlled by an enterprise in the form of binary symbols and expressed as specific information content.The third chapter is "Existing regulations and limitations on the protection of enterprise data interests".This part combs the protection rules of the existing system for the interests of enterprise data.Since the regulation of data in the traditional system mainly focuses on the content level and less involves the data at the code level,this chapter reviews the protection and deficiencies provided by the existing intellectual property system for enterprise data.The first part is "The protection of enterprise data by trade secret system".This part provides a rough analysis of the constituent elements of trade secrets and examines the legal relationship between trade secrets and enterprise data.The degree of compliance is measured by the application of regulation on the business secret to enterprise data.The compliance is also ensured by confidential and economically profitable interests being protected by the secrecy approach.The second part is "The protection of enterprise data through copyright system".Due to the considerable overlap between enterprise data and databases,this part firstly focuses on the basic theory of databases that is combined with the extraterritorial experience and expounds on several current methods for database protection such as the neighboring rights protection model adopted between Germany and Russia,and EU directives.In addition,this part reviews the cross-relationship between enterprise data and databases from a practical perspective and explains the overlap and difference between them.Due to the founding that enterprise data transformed to the form of database,thereof law applies to the database domain.And,since there is a lack of special regulation on a database,the regulation of enterprise data stored in a database platform is only covered by the compilation work system.The third part is "Summary".Here the object for the discussion is non-compliant data with the requirements settled for commercial secrets and copyright.The forth chapter is "Enterprise data right theory and its reflection".Influenced by the inertia of traditional civil law rights thinking,at present,the academic circles generally believe that the data should be righted to protect the interests of enterprise data and deal with various social problems.In view of this academic tendency,the first three parts of this chapter systematically combed several ideas of enterprise data right in the current academic circles,and expounded the shortcomings of various theoretical ideas,including the real right protection theory of enterprise data,the adjacent right protection theory of enterprise data and the new property right model of enterprise data.The fourth part is "re reflection on the theory of enterprise data right".This part analyzes the infeasibility of data right construction from the object and subject of data right construction,and points out that the sufficiency of data is doomed to be difficult to carry out right construction.The fifth chapter of this dissertation is "Theories on data circulation and control for enterprises benefits".After negating an idea of data rights,this chapter further reveals the basic attributes of the continuous circulation of data in the context of the Internet and explains facts on enjoying data from the perspective of enterprises benefits to the technological control respectively.This article is divided into two parts.The first part"Data circulation theory" elaborates the meaning and the theoretical basis of data circulation and undergoing restrictions.It is stated that data circulation is formatted since the flow of the internet disseminating data value.Various approaches of rights for data ignore the original intention of the Internet as well as data circulation within its network by blocking data and reducing data circulation.Therefore,this part reaffirms the theory of data circulation,and the current data circulation means when data barrier is opened to a limited extent,allowing network users to access enterprise data that lead to the promotion of data sharing and circulation.It is defended that data circulation is significant for building a public space network improving the value of data,and developing the digital economy.The theoretical basis for advocating data circulation lies in humans’ natural public goods and reciprocal nature.The non-exclusive,non-competitive,and public interest in data determines the impossibility of data monopolization by companies because the reciprocity rooted based on human nature is destined for the development of the Internet when users and enterprises contribute affords to prolong data circulation.Although regardless of the unlimited data circulation companies cannot take data as their own as well as control and benefits data because of the technical outcome.The problematic enterprises’ control of data flows is considered from the view of the connotation and the theoretical interests to make this control over whereas the power and limitations are on the place to be discussed.The possession system in the property law provides the foundation and analogy for the theory on data control.It is a fact that companies control data based on their technology.This should be regulated by the law from the protection perspective of enterprise data interests.Although many scholars believe that data rights should be further realized,Article 127 of the Civil Code,as a referral norm,cannot provide definitive legal support for the theory of rights for data.Based on the authorization of the user agreement,companies have obtained a legal basis for the collection and processing of personal information.For non-personal data,companies naturally have the freedom to collect and use without any legal obstacles.It is reasonable to define an enterprise’s data interest as a controlling interest,which is in line with the actual situation of data circulation and can also reasonably balance various interest disputes over data promoting data utilization and economic development.Based on the data control,enterprises can reasonably use data to obtain benefits,but such behavior needs to be subject to certain restrictions,including restrictions for the citizens’ privacy and personal data protection,the protection of consumer rights,and for the maintenance of the interests for national security.The sixth chapter of this dissertation is "The behavioral regulatory model of enterprise data protection and its development".This chapter is governance issues on enterprise data in a way of behavioral regulation.It is excluded to focus on the legal nature and ownership of data but includes the discussion on governance rules for data behaviors specific.Hence,this chapter is divided into three parts.The first part "The behavioral regulatory model for the protection of enterprise interests to data" explains the characteristics of the behavioral regulatory model,the objects of a proposed regulation,and the way to enforce this regulation according to the "bird’s-eye view"theory.Forwarding the methods for the governance of enterprise data the study directed to solve governances for data transactions and data infringement.The second part "Legal regulations of data transactions" targeted several data transaction modes in current practice such as data transactions between private individuals,data transactions within data exchanges.The transactions are further divided into static,dynamic,and customized data transactions.They have differentiated regardless of the legal nature of data transactions typologies.The intangible and reproducible characteristics of data itself determine the large discrepancy between data transactions and traditional sales contracts.In the transactions implying static data and customized data,the data provider offers information to the data demander in order to accompany the data demander solve the difficulties in production and operation.Due to the fact of no difference comparing to the traditional technical services,therefore it is characterized as a kind of service contract.For that regulation,the relevant provisions of the General Principles of Contract Law are applied.And,in the transactions implying dynamic data,the data provider has to obtain permission given by a special authority to the data requester,allowing the data requester to use the data in accordance with the agreement between the two parties and issued technology license.The service contract has certain similarities,and the relevant provisions of the General Rules of Contract Law are applied,and the provisions of the technology licensing contract are referred to at the same time.The focus of legal regulation on data transactions should determine traded data.Under the guidance of the principle of"informed consent",current legislation established that data flow and sharing are required user authorization and fully informed consent with an individual that has certain practical operations.The difficulty here is not managing data transactions and data flow,but it is necessary to comply with appropriate norms from absolute agreement to relative agreement based on the scenario-based theory.Specifically,for sensitive data,it is necessary to follow an absolute consent regulation;but for non-sensitive information,it can moderately apply soft regulation without complete personal consent.However,the study pays attention that transactions with non-sensitive information need to follow the principle of legality and rationality of the purpose,and at the same time provide measures to compliance strengthen.Also,risk prevention and data transactions control especially for subsequent data processing are at the center of the next discussion.In addition,the filing system for data transactions should be strengthened on the way of the procedural control over data transactions conducted by transaction parties,and the role of third parties is to improve data security and promote data circulation.As for the data trading platform,all localities are currently preparing to establish their own data exchanges,but the effect is not satisfactory.In the future,it is necessary to concentrate resources,reduce the number of exchanges,and increase the scale of exchanges.In order to promote data resources,they have to be relatively concentrated by facilitating data transactions.Based on the different participation and roles of data exchanges in its transactions,different regulations should be applied and restrained.The third part "Legal regulation of data infringement" proposes a combination of public and private law,and discusses the legal response to data infringement.From the perspective of public law,the current regulations of the Criminal Law,the National Security Law,the Cybersecurity Law,and the Personal Information Protection Law are provided a legal basis for data infringement regulation.At the same time,it also provides a basis for the private law to protect data infringement by the adoption of the anti-unfair competition method and its justification by the principle of unfair competition.But the scholars show criticisms about this regulation.Therefore,it is necessary to classify certain establishments.It is found article 12,paragraph 2,item 4 of the "Anti-Unfair Competition Law"adopted aiming to provide a shield for the unauthorized behavior for data access,and therefore,in the view of limitations to prevent unfair competition in data use,it is researched whether it violates the principle of good faith,business ethics,and whether it has substantively the service is replaced the social participation,and whether it has harmed the fair competition in the market and other factors.In addition,the company’s interest in data control is understood as a legal interest protected by law.Based on the fact that it is illegal in public law,the victims can be relieved by the relevant norms of the tort law.Data infringement is a general practice when the principle of fault liability is applicable.Since data is not a property,the loss suffered by the victim should be regarded as a loss of pure economic benefit,and the relevant provisions of patent infringement are referred for damage compensation.The amount of compensation is determined based on the benefit of the infringer or data transaction-related costs.The sixth chapter of this dissertation is a "Conclusion" and provides summaries of the completed research. |
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