Research On Intellectual Property Issues Of Derived Data In The Era Of Digital Economy

The establishment of big data trading platform in the era of digital economy has built a bridge for derivative data trading and the further development of digital economy,and derivative data has become an indispensable and important resource for countries and enterprises.Derivative data has the characteristics of immateriality,reproducibility and property,and at the same time meets the category of intellectual labor products,and can be classified as other subject matter related to intellectual property rights in Article 123 of the Civil Code.Derivative data is data that is independent of the original data formed by the deep "processing" of the "stolen" data collected and mined by the data processor,so generally speaking,the rights and interests of derived data should belong to the data processor.There are two main modes of protection of derived data in practice:empowerment models and behavioral regulation models.Under the empowerment model,copyright and trade secrets can be granted to derivative data that meets the requirements.The protection of derivative data by copyright only includes compilation databases that are original and constitute works,and the scope of protection is relatively narrow.Trade secrets are protected by non-disclosure,which is easy to form "data islands" and "data barriers",and is contrary to data sharing in the digital economy era.The behavior regulation model mainly relies on the general provisions of the Anti-Unfair Competition Law to adjust the business behavior between derivative data operators,which plays an important role in early data protection.With the increasing complexity of the digital economy and data interests,the pattern of behavior regulation is gradually showing shortcomings.On the one hand,the protected derivative data subjects under this model are limited to data operators,and the scope of protection is very limited to persons other than operators.On the other hand,principled provisions as general provisions are highly subjective and tend to undermine the stability and predictability of the law.At present,there are still some other problems in the intellectual property protection of derivative data in China,such as the intellectual property legislation of derivative data is not perfect enough,and the development of derivative data protection and sharing at the same frequency.Based on this,it is necessary to build an intellectual property protection system for derivative data with Chinese characteristics,that is,to establish a separate intellectual property protection model for derivative data rights and interests,making it parallel to copyright,patent right and trademark right,so as to make up for the shortcomings of the aforementioned protection model.Accordingly,the rights corresponding to the derivative data should also be called the exclusive right of the derivative data.In the specific setting of powers,it shall include the right of modification,the right of distribution,the right of reproduction,the right of information network dissemination,etc.At the same time,in order to prevent derivative data rights holders from abusing derivative data rights to monopolize the data market,limited protection should be provided for the exclusive rights of derivative data they enjoy,so as to balance the relationship between the state,the public and users.