Research On The Legal Basis And Institutional Construction Of Government Data Openin

Human society has entered the era of big data, and data has become a factor of production alongside labor, land, technology and other things. The basis for realizing the value of data resources is the existence of data sets with rich structure, wide sources, diverse types, and massive and relevant data sets which can be analyzed and used by big data technology. Therefore, it is necessary to encourage data controllers in different fields to open their data to make data flow freely between different fields.The government is the largest data owner and controller in the whole society, and its data opening is crucial for giving play to the value of big data and driving economic development and social progress in the era of big data. The open government data has become an irreversible upsurge worldwide. At present, Chinese open government data is in the preliminary exploration stage, so it is urgent to clarify the basic theory of law to lay the foundation for the legalization of the open government data system. Based on this, this paper focuses on one of the main issues in open government data: study the data right, obligation, power and other issues existing in open govermment data in the era of big data. In addition to the introduction and conclusion, this paper has five chapters, the main framework is: First, this article define the general concept of open government data, and analyze the relationship between data right and obligation in open government data. Then this article examine the challenges to data rights in open government data and sort out the rule of law experiences of open government data in orepresentative countries and international organizations outside the region. Finally,this article put forward the main measures to legalize the Chinese government open data system. The specific contents are as follows.The first chapter defines the general concept of open government data. This chapter uses a progressive approach to legally define and explain the concepts of data, government data and government data openness. Data is a legal relation object different from information. Big data not only means that the concept of data set replaces the concept of data in ontology, but also constitutes a new social background and brings new legal problems, which is the basic theory of this paper. On this basis, this chapter clarifies the definition of government data, classifies government data according to different standards, differentiates related concepts, and makes clear that government data has the attributes of property, society and national sovereignty. Furthermore, this chapter explains the legal connotation and characteristics of open government data by tracing the historical source of open government data, and makes a legal analysis of open government data, open government information and government data sharing.The second chapter focuses on the analysis of data right and obligation in open government data. On the basis of data being the object of legal relations, this chapter proves the exsitent of a new data right and power system. The data right and power system is the power or right that the data subject has to dominate and control the specific data, which is a multi-dimensional right and power system. And this chapter puts forward that the ownership of data right is different from the traditional single entitlement model, and there exists a dual right structure of original data right and usufruct data right on data. On the basis of clarifying the relevant theories of data right system, this chapter demonstrates that the right foundation of open government data is public-interest data right by using the logical derivation of data right system and dual ownership of government data right. The subjects of public-interest data right include natural persons, legal persons and other organizations in a broad sense;In a narrow sense, the subject of public-interest data right is citizens. Public-interest data right is a continuous and progressive exercise process, including the government data access right as a precursor right, the government data use right as a core right, the government data usufruct right as a purpose right, and the government data request right as a guarantee right. Moreover, from the perspective of data power, the government can exercise the highest control power of domestic data on behalf of the country. In the process of exercising the data control right, the government must fulfill the corresponding data obligation, because it is the obligatory obligation of the government to open the data it owns and controls to the public according to law.The third chapter examines the challenges of data right and power in open government data. From the perspective of data right, on the one hand, public-interest data right, as the basis of open government data rights, is inevitably in conflict with the original data right and inevitably in tension with the protection of information right and interest. On the other hand, after the opening of government data enters the digital economy market, there are some problems, such as the tragedy of the commons of govermment data access right, the paradox of equality of govemment data use right, and the alienation of algorithm power intensifies. Based on the perspective of data power, the government data power has the risk of abuse due to the natural expansion of power. In addition, due to the threat of data hegemony due to the global issue of open govermment data, government data power is faced with double dilemmas in open government data.The fourth chapter studies the rule of law experience of open government data in representative countries and international organizations outside the region. Explaining the legal basis of public-interest data right, govemment data power, open govemment data obligation and data right challenge in open government data is a "tool of scientific thought building" as a new system of data rule of law. Compared with China, many other countries have carried out the practice of open government data earlier. On the one hand, other countries have explored and built the construction of open government data to provide legal support for the realization of government data opening. On the other hand, these countries are working together to address the issue of data openness by forming intenational organizations and signing intemational agreements. The rule of law experience of other countries in open government data have positive reference value for promoting the rule of law construction of open government data in China.The fifth chapter discusses the rule of law construction of China’s open govemment data. As a new legal phenomenon, open government data is faced with important tasks such as constructing the rule of law to realize citizens’ public interest data right, standardizing govemment data power, promoting government to fulfill data opening obligations, and coping with the challenges of data rights in open government data. Therefore, this chapter puts forward the construction measures to realize the legalization of open govemment data. Specifically, on the basis of summarizing the legislative experience of local governments, the "Regulations on Open Government Data" could be first formulated, and then the "Open Govemment Data Law" is formulated when the legislative conditions are mature; Clarify and coordinate the multi-value objectives of open govermment data, especially to achieve the balance between data efficiency and data justice; Establish the legal principles of open government data to guide the construction of open government data system;Strengthen data govemance in open government data to deal with legal risks such as data rights challenge; Explore the government data usage mode combining free and charged based on the characteristics of digital cconomy; Participate in the rule of law construction of global government data openness based on the concept of data people centrality and data human community of shared future.