Research On Legal Protection Of Data Property Rights In The Era Of Big Data

The arrival of big data era and the needs of data elementization call for the improvement of the legal protection for data property rights as soon as possible to protect the release of data value.Data property rights refer to people’s control and utilization of data,and highlight the relationship of rights and obligations between data ownership and data utilization.China’s data rights protection has gone through three stages: personality rights protection,property rights protection,and rights-binding protection.Although data has both personality attributes and property attributes,data is gradually stripped from information and becomes a specific research object in property law.Data has the characteristics of non-competitiveness,non-exclusivity,non-homogeneity,temporality,concomitant and so on.Due to the complex characteristics of data,there are two means to protect the interests of data property: data rights regulation mode and data behavior regulation mode.The legal protection of data property rights is not an opposing issue of "choosing the side",but a normative system that combines both formality and substance,closedness and openness.There are three main reasons why we should reconstruct the dual collaborative protection model of “data rights regulation + data behavior regulation”:the inherent drawbacks of the two regulation models,the integration of legal formalism and legal substantiveism,and the spirit of "introspection rationality" of the self-generated law system.The collaborative protection model helps to solve the problems of numerous data market entities,intertwined interests,complex application scenarios,and concealed technical means.On the one hand,the data rights regulation model follows the path of“empowerment-rights protection”,and clearly defines the ownership of data rights and data property interests.In fact,it is based on rights norms.We urgently need to build a dual property rights structure of "data ownership + data usufruct" : data subjects enjoy data ownership,they can develop and utilize data to obtain property value;data controllers enjoy data usufruct rights,including the right of control,use and benefit.All rights are independent of each other to meet the complex,differentiated and diversified interest demands on the data.On the other hand,the data behavior regulation model focuses on the constraints on the processing behavior of the data controller,which is based on the fiduciary duty norms.Data controllers should actively undertake the obligations of diligence,data protection and loyalty,reshaping the original value of "trust" in the digital society and maintaining the sense of property security of data market participants.Since data controllers possess key evidence and have strong risk prevention ability,we should try to explore the inversion of burden of proof system and punitive damages system at the relief level,which is conducive to debugging the conflict between the interests of data development and data security.All in all,data property rights are man-made objects created by human beings according to social needs,and the legal protection system for data property rights will inevitably be enriched and improved with the development of the data economy.