| The Fourth Industrial Revolution has changed how people live,work and relax,leading to an exponential growth in data.At the same time,it has also increased the world’s dependence on data.Data has become the core resource of the digital economy,just like the important role played by electricity and oil in traditional industries.The government,the largest producer and owner of data,can help promote economic development,improve people’s livelihood services,advance scientific research,and can enhance the efficiency and decision-making quality of the government by making these data available.Meanwhile,with the enrichment of application scenes and the improvement of algorithms,public data may generate various new applications and create new knowledge.This article focuses on how to legally construct the system of public data rights and public data opening,with the central issue of how to regulate the distribution of public data,a factor of production,through legal means.The international open public data movements emerged in the first decade of the21 st century.With the advocacy of the international community,many countries started to introduce and implement initiatives and systems for public data opening.The common practice is to define the aims through policy documents and clarify rights and obligations through legislation.The legislation and practice of public data opening in China can be divided into the early exploration stage,the start-up stage and the vigorous development stage in which public data opening is guided by local legislation.As early as the beginning of this century,some departments were keenly aware of the value of data.Although they formulated corresponding instruments to promote the development and application of data,there was no broad social consensus.The year 2012 was the first year of public data opening in China.The landmark event was that the Shanghai Municipal People’s Government launched the public data opening website,which was the first public data opening platform of provincial governments in China.This led to the practice to open up public data in other regions.In 2019,Shanghai issued the“Interim Procedures of Shanghai Municipality on the Opening of Public Data”,setting off the boom of domestic legislation on public data opening.While the legislation and practice rapidly advance across the country,opening public data is facing some difficulties.They mainly manifest in the following five aspects.First,public data is not clearly defined.The definition of public data is still very controversial.Second,the connotation of open public data is in dispute.Localities have explored a number of ways to provide public data to the society;however,whether they should be included in the open public data to be unified and standardized,there is no explicit definition.In addition,public data openness needs to be distinguished from government information disclosure.Third,the ownership of public data and the content of its rights are unclear.Is there any legal right(or interest)on public data? To whom does this right belong? What is the specific power and function of this right or what is the content of the right? These are the fundamental questions of public data opening.Fourth,there are deviations in the legislative principles of public data opening.Many domestic legislative principles of public data opening influenced by international open public data movements are too ambitious,which affects the scientificalness and feasibility of system design.Fifth,the path and rules of public data opening are not unified.In reality,the way public sectors provide public data is fragmented without standards.It not only brings the problems of poor quality and low efficiency of data opening,but also brings the problem of the unfairness of public resource allocation.Before defining public data,it is important to clarify the legal concept of data.All concepts of data are like a spectrum,and the two ends of the spectrum are the narrowest and the broadest.In the narrowest sense,data refers to “figures”,such as statistics.Data in the broadest sense not only includes numbers recorded on paper,but more refers to electronic information.In this article,data specifically refers to “data resources”,which are primary,machine-readable datasets recorded in electronic form.They have production factor value in the age of big data.It is crucial to define the relationship between data and information for discussing data issues.In general,data can be transformed into information after analysis,and there may be differences in the information conveyed by the same date.The main carrier of information is data,but there are other carriers for information.Therefore,it cannot be simply assumed that data contains information or information covers data,both of which have the value of existing independently as legal concepts.The concept of public data has gradually evolved.In this article,public data refers to all kinds of data resources collected and generated by administrations and other organizations that perform public management and service functions in the process of fulfilling their duties.Public data is an important public resource in the digital age.It comes from the activities of administration and related institutions that undertake public services to perform their duties,as a by-product.In terms of content,public data can be broadly divided into four categories.First,data generated by the government operation,such as government budget data and management data of public officials.Second,regulatory data collected by the public sectors as supervisory authorities,like accident and injury data collected by safety regulators,high-speed railway operation data and aircraft flight data recorded by transportation regulators.Third,data collected by the public sectors as service institutions,for example,clinical data collected by hospitals.Fourth,data collected by the public sectors through observation and research,like hydrological data,environmental monitoring data,meteorological data,etc.There are three common features of public data opening.First,the subject of the opening is the public sector at all levels.Second,the open object is public data.Third,in terms of behavioral characteristics,“openness” indicates the transfer of data originally controlled by the public sector to society for use.Public data opening,as defined in this paper,refers to the behavior of public sectors to provide primary,machine-readable public data resources to society.It is significantly different from government information disclosure in terms of open object,institutional origin,value goal and open receivers,etc.To apply the provisions of government information disclosure to open public data is exactly procrustean.As the logical starting point of data rights protection,the confirmation of data rights is a prerequisite for the establishment of data opening rules.And it is a fundamental issue for the construction of the entire legal system related to public data.China currently protects data rights and interests mainly through intellectual property law,the law against unfair competition,personal information protection law and data security law,as well as criminal law.These existing ways of protecting rights and interests all have their own deficiencies and cannot adapt to the needs of market entities for data collection,governance,utilization and openness in the context of the digital economy.This article argues that a new type of rights with data as the object should be legally established,and the data rights should be attributed to the collectors and controllers of data.The content of data rights includes the right to control,use,modify,and release data.For data that "contains personal information",the ownership still belongs to the person who collects and controls the data,but the exercise of data rights must be restricted and limited considering the personal information rights of the data subject.Public data are generated from the authorized official activities of the public sector.Logically,the act of data collection represents the public interest,and the cost of these data is covered by public finance.As a valuable property interest,the rights and interests of the data should belong to the state,and that is to all the people.Therefore,public data can be characterized as public resources,but it differs from traditional physical public resources.Data resources are non-physical,non-consumable,dependent and volatile in value,making them a special kind of public resource.The subjects involved in the entire chain of public data from formation to use include data producers,controllers(public sector),the data and data users.The only logical subject to exercise the data right is the controller,which is the specific public management and service institution that actually collect and control the data.It holds complete data rights to the factual information in public data.It should also focus on the protection of privacy when exercising its rights to the data that contains personal information.From the perspective of the legislative principles of public data opening,three principles are in a fundamental position,including “Open by Default”,“Open for Free”and “Open without Discrimination”.The default opening principle means that public data is available by default in terms of its nature and positioning.The principle of opening for free means that the government should provide free access to data and should not charge any fees for providing data.It implies at least three meanings.First,no fee shall be charged for the act of data opening;second,use an open file format,which allows the use of data without any specific priced software.Third,the data licensing terms are comprehensive and unreserved.At last,the principle of nondiscriminatory opening refers to that once the data is open,it is open to all users,and the public can access the data unconditionally.These principles have not only influenced the legislation of the United States,Europe and other places,but also the local legislation in China.The above principles are more or less reflected in the provisions in the process of system design.However,there is a deviation between the guidance of these principles and the actual capacity and reality of the government.Therefore,when these principles are used to guide the legislation and the power of legislation is used to push open public data movement forward on a wider and deeper level,problems with data quality and the opening effect inevitably arise.The default opening principle lacks necessity,is hard to grasp the risks,and ignores the costs of data openness.This principle makes public data opening evolve into a legal obligation of the public sector,which may lead to unnecessary litigation burdens.In the construction of the system of public data opening,it should uphold the principle of opening up with a positive list,while outside the list as an exception.The principle of opening free grossly underestimates the cost of redistributing data after collection.The problems of public data opening include data and information mixing,data fragmentation and low data quality,which are inseparable from the lack of government input due to the free opening principle and the lack of sufficient capacity and power to improve data quality.Adopting the principle is also against the fairness of financial burden.In the construction of the public data opening system,the legislative principle of combining free and fee-based open access should be upheld.For the principle of non-discriminatory opening,the reason why it cannot be fully implemented is that different public data have great differences in security management,information protection and requirements for development and application.Meanwhile,there are different scenarios and capacity requirements for data utilization subjects,so it is difficult to set a unified mode and path for non-discriminatory data supply.Based on the revision of the legislative principles mentioned above,this article believes that two types of opening paths can be established,including direct opening and indirect opening of public data.Direct opening refers to the public sector directly authorizing data subjects to use public data and establishing a legal relationship with the public directly.In the case of indirect openness,the public sector first authorizes a specific subject to use data in bulk,and then this subject will open the data or data products to the public.The direct opening of public data can be further divided into fully authorized opening and limited authorized opening.The fully authorized opening refers to the way that the public sector grants all the rights of the data that are suitable for opening to the general public to the users without approval.This method mainly meets the basic and universal data needs of the social public.The public can access the data directly through open platforms.It is fundamental,free,without approval,fully authorized and anonymous.The limited authorization opening applies to non-basic public data,mainly professional data sets of specific industries and fields.These data have high requirements on the data security management level of the users and the volume and sensitivity of the data are not at the same level as the general open data,so it is not appropriate to open these data in a fully authorized.Instead,the conditions of use should be clarified,and the user should be given limited access to the data.This method can apply the paid mode,and both public departments and data users have obligations after opening data.The indirect opening of public data can use the legal framework of government franchising to design.The government grants the right to develop and utilize data resources to the concessionaire.And with the help of professional organizations,they jointly carry out data governance and develop data products,thus realizing public data opening.In the whole chain of opening data,compared with the previous two paths,this method involves the concessionaire.It is essentially contractual public-private cooperation to provide public data opening.The scope of franchised open data is nonspecific data and does not refer to a specific scenario or dataset.Based on the characteristics of data resources,the selection of concessionaires should follow the principle of competition,rather than the administrative designation or exclusive authorization.The operating costs are largely covered by charging to users,and concessionaires are allowed to develop value-added services.Government departments should supervise activities of both data development as well as data opening of concessionaires. |
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