Research On The Legal Structure Of Data Property Right

Although data as an important factor of production in the digital economy has increasingly become the focus,there is no specific law on data protection.In recent years,domestic scholars’ researches on data mainly focus on the protection of personal information and privacy.Although there are discussions on the protection of data interests in data circulation,many questions haven’t been fully answered.In judicial practice,there are two ways to solve data disputes: anti-unfair competition law and contract law,However,due to the specific legislative context and function of the existing legal system itself,it can’t be fully applicable,and data property protection is insufficient.The actual needs and derailment of legal norms will make it hard to handle the increasing data disputes,which will inevitably affect the innovation of data technology and the development of digital economy.In view of this,This paper proposes to construct data property right in legislation,and explore the tort relief for data property right from the perspective of Tort liability law,so as to further implement the protection of data property interests legally owned by data property right holder,and create a fair and stable digital industry environment.Based on this,this paper is mainly divided into five parts.The first part studies the content and type of data,the basic theory of data property,and solves the problem of what data is and its legal position.Clarify the correlation between data,personal information and big data.This paper takes the data with property attribute as the main research object.The second part analyzes the deficiency of current data legal protection from legislation and judicature.At the legislative level,the specific system of data protection is blank and the legislative attitude is not clear.At the judicial level,the protection of data according to the anti-unfair competition law and contract law is limited and insufficient.The third part explores the establishment and construction of data property right.First,the establishment of data property right has practical necessity and theoretical basis;Second,the property attributes of data are demonstrated by distinguishing data and personal information;Finally,analyzes the feasibility of the path of the right construction,and proposes to construct a new type of data property right in addition to the existing property right,so as to improve the property right system.The fourth part is about the specific content of data property right.This paper holds that the subject of data property right is the data controller;The object of data property right is data property,which shall be stipulated in the form of "terminology interpretation +application of exclusivity";In addition to the traditional power of property right,the power of data property right also includes the power of collection.This paper advocates appropriate restrictions on data property right,mainly including three points: personal information processing follows " the notification-consent rule",establish the de-identification of personal information,and strengthen the responsibility of data controllers.The fifth part studies the tort protection of data property right.The aim is to solve the relief problem after the right is infringed,and to ensure the integrity of data property right in the system logic and the comprehensive protection.It is mainly divided into three aspects.First,advocates to adopt the principle of imputation of fault liability;Second,discusses the constitutive elements of data tort liability: infringement of data property right,identification of subjective fault,judgment of damage facts and identification of causal relationship;Third,In terms of tort liability,the application of liability for damages and preventive liability.