Research On Intellectual Property Protection Of Commercial Data

The theory of commercial data rights mainly includes the theory of behavior regulation and rights regulation.The theory of behavior regulation believes that commercial data can be protected by contract law,tort law and other laws,and it is not appropriate to protect absolute and exclusive rights.Based on the jurisprudence of industrial economics and labor theory,the theory of rights regulation believes that commercial data right is legitimate,and thus two theories have emerged: protecting commercial data within the framework of existing rights and protecting commercial data by establishing a new rights system.In the framework of existing rights,the exclusivity of the "property rights theory" hinders the circulation of commercial data and the development of data economy,ignores the intangibility of commercial data,and leads to the theoretical logic of commercial data cannot be reasonably incorporated into the property rights system.As far as the "intellectual property theory" is concerned,the existing intellectual property system cannot accommodate commercial data,and there is an urgent need to create a new intellectual property subject matter.As a new type of right,the protection of commercial data by establishing a new rights system is also a path,mainly including the theory of "commercial data property rights" and "data exclusive rights".The "commercial data property right theory" believes that commercial data should be regarded as a new type of right alongside property rights and intellectual property rights;The "data exclusivity" theory holds that commercial data should be regarded as a new type of subject matter under the framework of intellectual property rights,alongside copyrights,patent rights and trade secrets.At present,the choice paths for intellectual property protection of commercial data in China mainly include: Copyright Law,Trade Secrets,and Anti-Unfair Competition Law.Since native commercial data is not unique,it is difficult for the Copyright Law to fully protect commercial data;Because some commercial data is public,it does not meet the "secret" characteristics of trade secrets;Since the principle provisions of the Anti-Unfair Competition Law are applied in many current cases,if this clause is applied for protection,judges will have greater discretion in making decisions,and the rights and interests of the parties will not be reasonably protected.It can be seen that commercial data is controversial in both theory and judicial practice,so it is extremely important to find a reasonable business data protection model.Business data and intellectual property have a high degree of similarity in terms of institutional objectives,protection objects and development trends,so intellectual property can be used as a system to protect business data.Through the typed classification processing of commercial data,it is divided into native commercial data and derivative commercial data and typed protection,among which the Anti-Unfair Competition Law is adopted for protection of native commercial data because it does not have original value;As for the use of derivative business data as a new intellectual property object,the specific protection can be carried out with reference to the existing intellectual property system.In order to provide a certain theoretical basis for the protection of such emerging objects in the process of judicial practice,effectively balance the protection of rights and interests and data circulation,and maximize the benefits of all parties.