Research On The Right Protection Mode Of Commercial Data

With the continuous development of Internet technology,we have shifted from the era of information technology to the era of data.And as one of the main sources of big data,business data generated by business activities not only brings new vitality to market operation activities but also brings new challenges to market competition order.In practice,commercial subjects are afraid to use a large amount of data under their own control,and the protection of data acquired by commercial subjects in business activities is not clear in judicial practice.There are two main reasons why businesses are reluctant to use business data under their control:Firstly,it is caused by the characteristics of the commercial data itself,and the separation between the subject of its production and the subject of value development makes it impossible to naturally confirm the ownership of the commercial data.Second,it is caused by the lag of laws.The current level of regulations on data is uneven,which fails to provide guidance for the behaviors related to business data.To define the concept of commercial data clearly,as a new strategic resource,commercial data itself has the characteristics that distinguish it from other resources--communism,non-information,big data form and non-structure;As a new thing worthy of legal attention,it has its own characteristics of value--zero marginal cost and sharing.Because different subjects plays differrent active role in commercial data formation,so the commercial data can be divided into interactive collection type,non-interactive collection and independent mining type.Through the constitutive elements of property in the legal sense and the application of economic principles,this paper demonstrates the legitimacy of protecting the property rights of commercial data.In terms of economic principles,only by protecting the property rights of commercial data can the value of commercial data be maximized and the total social welfare be increased.In the legal sense,commercial data itself has value,controllability and transferability,which makes it property.The existing right protection paths--real right path and intellectual property right path--both have their limitations.So,Proposed that the new type of property rights has great advantages,It not only helps to protect the self-use and exclusivity,but also helps to clarify the multiple legal sources of commercial data,and helps to realize the cross-border flow of data under China’s legal system.This paper constructs the basic principles and ownership of commercial data rights,and clarifies that commercial data rights should be based on the principle of interest balance,with the exception of the principle of social interest,and should adhere to the principle of limited domination and deep sharing,and maintain the principle of market competition.Business data right is divided into property right and personal right,and the ownership of business data is constructed from the perspective.of typing.In terms of interactive collection of commercial data,in order to protect the personality interests of individual subjects,commercial subjects only enjoy part of the commercial data rights.As far as non-interactive collection commercial data is concerned,all rights of commercial data belong to commercial subject.As for the self-mining commercial data,it is decided that the commercial subject enjoys the complete right of commercial data with the standard of "de-identification".Hope that will realize the balance between the personality interests of the individual subject and the property interests of the commercial subject,and pay sufficient attention to the balance between the private interests of the commercial subject and the public welfare,and ultimately,the value of commercial data will be fully utilized.