Viewpoint. Policy interpretation: "Data 20" of the three power-sharing framework.
Published:
2022-12-27
Recently, 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" (hereinafter referred to as the "Opinions") was issued. The Opinions put forward six major aspects, a total of 20 policy initiatives to build a data-based system, also known as "data 20". Among them, innovative measures such as the "separation of three rights" of data property rights, the construction of a multi-level data trading market system, and the promotion of public data sharing and circulation have attracted great attention from all walks of life. In fact, as early as June 22 this year, the "Opinions on Building a Data Infrastructure System to Better Play the Role of Data Elements" reviewed and approved at the 26th meeting of the Central Committee for Comprehensively Deepening Reform proposed "to establish a data property rights system and promote public Data, enterprise data, and personal data are classified and authorized to use, and a separate property rights operation mechanism such as data resource holding rights, data processing use rights, and data product management rights is established, improve the data element rights and interests protection system". The framework of "separation of powers" corresponds to the different interests of individuals, enterprises, society, the state and other relevant subjects on data. This innovative concept of data property rights weakens ownership, emphasizes the right to use, and focuses on the circulation of data use rights. It also puts forward new requirements for the operation of the data market and data transactions, especially for data service providers and related third-party service agencies. The service content also poses new challenges. 1. data resource holding rights When various issues involving data are raised, the main thinking of legal researchers generally begins with data ownership. The use of traditional property rights similar to the design method has also become a kind of taken for granted scheme-as of course for the ownership design of intellectual achievements, the use of property rights model and finally formed the intellectual property system. However, this idea has more obstacles in the context of data. While people are used to comparing data to oil or gold, unlike both, the system of data value is based on large-scale convergence and has incremental marginal returns, while individual or fragmented data has a rather limited capacity for wealth creation. Therefore, the Opinion does not use the concept of "ownership", but rather a "right to hold". The holding of data resources is related to different subjects. In terms of broad categories, data can be divided into public data, corporate data and personal data, and accordingly, data holders should include governments, businesses and individuals. For public data, it should generally be held and controlled by the management department; for enterprise data collected and processed by enterprises in production and business activities that do not involve personal information and public interests, these market entities have the right to hold, control and benefit data; For data carrying personal information, it is held by individuals, or collected, held and used by specific data processors within the scope of personal authorization. Right to use 2. data processing In national standards or industry guidelines, data processing refers to the activities of filtering, classifying, arranging, encrypting, and labeling data. The establishment of this right is mainly to protect the labor interests of data processors such as data collection and processing, recognize and protect the data-related rights obtained in accordance with legal provisions or contractual agreements, and fully protect the rights of data processors to use data and obtain benefits. Of course, the premise of enjoying this right is that the source of the data is legal and compliant. For illegally obtained data, the data processor not only has no right to process and use, but may also constitute tampering, destruction, disclosure of data or illegal use of data. According to some scholars, the right to use data processing belongs to a concept similar to usufruct, including control, development, licensing, transfer and other rights. However, the exercise of these rights will be limited by other rights such as the right to hold data. For example, when personal data is used for automated decision-making, unreasonable differential treatment should be avoided, and when information push and commercial marketing are carried out, options or convenient rejection methods that are not specific to personal characteristics should be provided; data processors should take encryption, de-identification, anonymization and other technical measures and other necessary measures to ensure data security. In the event of a data security incident, disposal measures should be taken immediately, inform users in a timely manner and report to the relevant competent authorities; data processing activities including processing and use shall not exceed the scope of legal authorization or contractual agreement. 3. data product management right The right to operate data products further reflects the attributes of data as an object of transaction and protects the market interests of data competitors. Its main manifestation is the restriction of third-party competition by the subject of data rights. The main content is to prevent competitors in the same industry from improperly using their data products to obtain benefits. In the era of big data, data products can bring considerable business benefits and market competitive advantages to enterprises, and the right to operate data products enables data processors to protect their data inputs (including data acquisition and processing). At present, China's data competition justice has basically established the principle of "triple authorization", that is, when an enterprise wants to obtain the data of other enterprises, it needs to obtain the authorization of users and data enterprises at the same time, and also needs the consent and authorization of users to the data holding enterprises. While effectively protecting the rights of personal data, this framework relies too much on the "informed consent" of users, which is not conducive to fostering a shared and fair competition data element market. The data product management right in the data 20 reflects the principle of "who invests, who contributes, who benefits", and promotes the reasonable tilt of data element income to data value and use value creators. At the same time, in the secondary distribution, three distribution stage, focus on the public interest and relatively vulnerable groups, to prevent and regulate the disorderly expansion of capital in the data field to form a market monopoly and other types of risk challenges.
Recently, 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" (hereinafter referred to as the "Opinions") was issued. The Opinions put forward six major aspects, a total of 20 policy initiatives to build a data-based system, also known as "data 20". Among them, innovative measures such as the "separation of three rights" of data property rights, the construction of a multi-level data trading market system, and the promotion of public data sharing and circulation have attracted great attention from all walks of life.
In fact, as early as June 22 this year, the "Opinions on Building a Data Infrastructure System to Better Play the Role of Data Elements" reviewed and approved at the 26th meeting of the Central Committee for Comprehensively Deepening Reform proposed "to establish a data property rights system and promote public Data, enterprise data, and personal data are classified and authorized to use, and a separate property rights operation mechanism such as data resource holding rights, data processing use rights, and data product management rights is established, improve the data element rights and interests protection system". The framework of "separation of powers" corresponds to the different interests of individuals, enterprises, society, the state and other relevant subjects on data. This innovative concept of data property rights weakens ownership, emphasizes the right to use, and focuses on the circulation of data use rights. It also puts forward new requirements for the operation of the data market and data transactions, especially for data service providers and related third-party service agencies. The service content also poses new challenges.
1. data resource holding rights
When various issues involving data are raised, the main thinking of legal researchers generally begins with data ownership. The use of traditional property rights similar to the design method has also become a kind of taken for granted scheme-as of course for the ownership design of intellectual achievements, the use of property rights model and finally formed the intellectual property system. However, this idea has more obstacles in the context of data. While people are used to comparing data to oil or gold, unlike both, the system of data value is based on large-scale convergence and has incremental marginal returns, while individual or fragmented data has a rather limited capacity for wealth creation. Therefore, the Opinion does not use the concept of "ownership", but rather a "right to hold".
The holding of data resources is related to different subjects. In terms of broad categories, data can be divided into public data, corporate data and personal data, and accordingly, data holders should include governments, businesses and individuals. For public data, it should generally be held and controlled by the management department; for enterprise data collected and processed by enterprises in production and business activities that do not involve personal information and public interests, these market entities have the right to hold, control and benefit data; For data carrying personal information, it is held by individuals, or collected, held and used by specific data processors within the scope of personal authorization.
Right to use 2. data processing
In national standards or industry guidelines, data processing refers to the activities of filtering, classifying, arranging, encrypting, and labeling data. The establishment of this right is mainly to protect the labor interests of data processors such as data collection and processing, recognize and protect the data-related rights obtained in accordance with legal provisions or contractual agreements, and fully protect the rights of data processors to use data and obtain benefits. Of course, the premise of enjoying this right is that the source of the data is legal and compliant. For illegally obtained data, the data processor not only has no right to process and use, but may also constitute tampering, destruction, disclosure of data or illegal use of data.
According to some scholars, the right to use data processing belongs to a concept similar to usufruct, including control, development, licensing, transfer and other rights. However, the exercise of these rights will be limited by other rights such as the right to hold data. For example, when personal data is used for automated decision-making, unreasonable differential treatment should be avoided, and when information push and commercial marketing are carried out, options or convenient rejection methods that are not specific to personal characteristics should be provided; data processors should take encryption, de-identification, anonymization and other technical measures and other necessary measures to ensure data security. In the event of a data security incident, disposal measures should be taken immediately, inform users in a timely manner and report to the relevant competent authorities; data processing activities including processing and use shall not exceed the scope of legal authorization or contractual agreement.
3. data product management right
The right to operate data products further reflects the attributes of data as an object of transaction and protects the market interests of data competitors. Its main manifestation is the restriction of third-party competition by the subject of data rights. The main content is to prevent competitors in the same industry from improperly using their data products to obtain benefits. In the era of big data, data products can bring considerable business benefits and market competitive advantages to enterprises, and the right to operate data products enables data processors to protect their data inputs (including data acquisition and processing). At present, China's data competition justice has basically established the principle of "triple authorization", that is, when an enterprise wants to obtain the data of other enterprises, it needs to obtain the authorization of users and data enterprises at the same time, and also needs the consent and authorization of users to the data holding enterprises. While effectively protecting the rights of personal data, this framework relies too much on the "informed consent" of users, which is not conducive to fostering a shared and fair competition data element market. The data product management right in the data 20 reflects the principle of "who invests, who contributes, who benefits", and promotes the reasonable tilt of data element income to data value and use value creators. At the same time, in the secondary distribution, three distribution stage, focus on the public interest and relatively vulnerable groups, to prevent and regulate the disorderly expansion of capital in the data field to form a market monopoly and other types of risk challenges.
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