Digital Industry Research... Data, data property rights, data intellectual property rights analysis-on the "three-power separation" to build the data element market shortcomings.
Published:
2024-05-23
Further exerting the amplification, superposition and multiplication of data elements and building a digital economy with data as the key element is an inevitable requirement for promoting high-quality development. The construction of the data element market has become the common expectation of the whole society, but the construction of the data element market must clarify the following issues.
The Opinions of the Central Committee of the Communist Party of China and the State Council on Building a Data Infrastructure System to Better Play the Role of Data Elements proposes that data, as a new type of production factor, is the foundation of digitalization, networking, and intelligence. Data has been quickly integrated into production, distribution, circulation, consumption and social services. Management and other links have profoundly changed the mode of production, lifestyle and social governance. In order to give full play to the multiplier effect of data elements and empower economic and social development, the National Data Bureau, together with 17 departments, has formulated the "Data Elements ×" Three-Year Action Plan (2024-2026). Further exerting the amplification, superposition and multiplication of data elements and building a digital economy with data as the key element is an inevitable requirement for promoting high-quality development.
The construction of the data element market has become the common expectation of the whole society, but the construction of the data element market must clarify the following issues.
What is data 1.? What are the attributes of data elements?
The State has issued the Data Security Law and the Personal Information Protection Law, which stipulates that there are both "data" and "information". What is the relationship between information and data? Can the two be mixed? Is information data? The national standard "Data Security Technology Data Classification Rules" defines data as "any record of information electronically or otherwise". We analyze from the perspective of personal information, which is based on personal blood type, height, residence, fingerprint, iris, travel, consumption and other data, we can obtain various information about identifiable natural persons. Therefore, data is a record of the objective world, which becomes information after cognitive processing. At the same time, information collection and analysis will produce a new level of data, which will become a new factor of production. The relationship between data and information looks more similar to the traditional Chinese Taiji diagram, which is an interactive process. Data has also become an indispensable factor of production in the process of digital industrialization, and as a factor of production, data has different attributes from other factors of production.
(I) data Soil autogenicity
Data is a very magical factor of production, just like the legendary "Xi Rang" is constantly self-generating. "Xirang" was once something in the myth of Shanhaijing, and it was so truly presented to us in the era of digital economy. Jin Guo Pu's Notes on Mountains and Seas: "Those who rest the soil say that the soil grows indefinitely, so they can plug floods."
Data is different from traditional raw materials and other production factors. Traditional production factors will be consumed after participating in production, and their physical and chemical characteristics will change, and the form of raw materials will no longer exist and will be consumed. However, the data elements still exist after they are involved in production and can theoretically be reused indefinitely, and the data itself is not only not consumed, but also generates new data. We can summarize it as "soil self-growth", the marginal cost of data elements in unlimited use is almost zero, but the marginal utility will continue to increase.
(II) data heterogeneity
Unlike traditional factors of production measurement standards are relatively consistent, such as machinery, plant, land will have a fair market value. The same data or even the same scale of big data, its utility value for different demand subjects is completely different, and over time the value of data will also change, and even the value of expired data shows a cliff-like decline, it is difficult to ensure the homogeneity of its value in a certain period of time. The heterogeneity of data value is also a major problem for data assets.
(III) data possession coexistence
The traditional factors of production can only be possessed by a specific subject in a specific time and space, and this possession is exclusive, so the four powers starting with possession-"possession, use, gain and disposition"-appear in the power of existing legal ownership ".
Data elements can be copied to any subject at the same time and space, resulting in its possession coexistence characteristics are obvious, there is no mutual exclusion of each possession, the use of different subjects will not affect the realization of the rights of other data possession subjects.
(IV) data non-scarcity
The value of traditional factors of production is based on the scarcity of market supply, so as to play the role of the market invisible hand and complete the effective allocation of limited resources in the market.
However, with the continuous increase of human activities, data will never dry up. The emergence of artificial intelligence and the increase of human computing power have led to the multiplication of data. Thus, the data itself is not scarce; what is scarce in the market is data products that are processed to meet specific needs.
So, how to use these data elements to form a new market? The data element market is based on data, especially big data transactions, but the unclear legal nature of data property rights will be a major obstacle to the construction of the data element market.
The 2. establishment of data property rights is the foundation of the formation of the data element market.
For the construction of the data element market, the idea of "three rights separation" of the right to hold data resources, the right to use data processing and the right to operate data products has been put forward. However, it is clear that the right to hold, the right to use and the right to operate cannot be in line with the ownership system in the existing legal system. Based on the aforementioned data attribute analysis in this paper, there will be an infinite number of data holders without mutual exclusion in the same time and space. Whose rights should be protected? And how should they be protected? Whose data processing is the basis for the subsequent processing and use? Even if the data can be traced back, how should these repeated data management rights be configured? Obviously, the initial concept of the separation of three powers is difficult to become the basis for the formation of the data factor market. As a result, data elements are outside the legal system, with unclear powers and responsibilities, which naturally fails to nourish the concept of "data property rights" and makes it more difficult to promote the formation of a market for data elements. According to the theory of labor value, data rights must deal with the relationship between data producers, data collectors, data information miners and other subjects, these subjects who pay labor in the process of data processing and condense their labor in it should be protected.
Data that can essentially become a factor of production are generally data of considerable size, at which point the data has moved away from the original data producer and into circulation. Because the value of data lies in possession and use, which can generate revenue. Corresponding to the legal system of ownership, the power of "possession, use and income" in the data element market is generally realized at the same time point, which is different from the traditional separable state of the power of production elements. As for the power of "disposition" of data elements, the realization of "transfer" is more concerned in the data element market. The construction of data property rights should be based on the principle of "possession is all", and the definition of the power of use of the power of the power of the power of the power of the power should be formed, only by allowing different data subjects to share data revenues can a truly free-flowing data element trading market be established.
In addition to data property rights in the data element market, some people further put forward the concept of data intellectual property rights, and in the actual data assets into the table process, many through the data deposit certificate issued "data intellectual property rights" certificate.
Since November 2022, Beijing, Shanghai, Zhejiang and other eight provinces and cities to carry out data intellectual property rights local pilot work, the pilot work to strengthen the exploration of data intellectual property rules, promote the circulation of data elements and other useful exploration. After the review and acceptance of the first batch of local pilot work on data intellectual property rights, 9 places including Tianjin, Hebei, and Shanxi have joined the second batch of pilot lists, and 17 places will jointly carry out the next phase of pilot work. The relevant person in charge of the Strategic Planning Department of the State Intellectual Property Office stated that as of the end of 2023, the pilot places for data intellectual property work have issued more than 5000 data intellectual property registration certificates, and a total of more than 11000 applications have been received. From the point of view of its registration, most of them complete the data storage certificate, and determine that the registered data have practical value, intellectual achievement attribute and non-public data collection. What is the significance of data intellectual property registration and data element market construction?
The registration of intellectual property rights in 3. data is more significant than substance in the form of the data element market.
From the point of view of the registration of data intellectual property rights in the pilot areas, most of them complete the data storage certificate, and determine that the registered data is a collection of data with practical value, intellectual achievement attributes and non-public nature, thus issuing the data intellectual property registration certificate.
However, this registration cannot correspond to the copyright registration, patent registration and trademark registration in the current intellectual property registration system, nor is it clear what kind of intellectual property rights the data intellectual property rights correspond to? Generally speaking, the registration of intellectual property rights cannot be included in the existing intellectual property protection system, and the registration can only have declarative formal significance, and still cannot produce substantive protection significance when it needs protection.
From the perspective of data intellectual property registration pilot areas, it is closer to the trade secret protection system in terms of its identification of practical and non-public intellectual achievements. However, big data collection itself may be a collection of known information, which is not known in nature. Only, the information formed by the data products generated by further data mining may be non-public, but this is precisely the state of the data elements after further processing and use by different subjects after the transaction, rather than the initial registration of data intellectual property rights. Moreover, there is no such thing as trade secret registration in the current trade secret protection system.
In short, on the basis of the four elements of traditional land, labor, capital and technology, data has become the fifth largest factor of production in human society and will play an unlimited role. However, based on the attributes and legal status of data elements, it is necessary to further analyze and study the integration of data property rights system with the existing legal system when constructing the data element market. The establishment of the data property right system, especially taking the data "possession is all" as the starting point, confirming the possession, use, income and disposal rights of data elements, and establishing the legal guarantee of the whole life cycle for data collection, mining, labeling, cleaning, processing, transfer, use, destruction and protection, which is the foundation of the formation of the data element market.
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