The Digital Economy Conference 2022 & The 12th Smart City and Intelligent Economy Expo in Ningbo City, Zhejiang Province, Sep.2 Photo:CFP

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The Digital China Development Report (2021) shows that from 2017 to 2021, China’s data production increased from 2.3ZB to 6.6 ZB, taking up 9.9% of the global total, ranked second globally. The industrial scale of the big data industry increased from 470 billion yuan to 1,300 billion yuan. Promoting the transformation of China’s data resource’s scale advantages to quality advantages requires constant exploration of the legalization and institutionalization of data governance rules.

 

Through promoting the orderly separation of related rights such as  the right to hold data, the right to process and use data, the Opinion on Constructing Fundamental Data Institutions to Better Play the Role of Data Factors (hereinafter refered to as the Opinion) establishes a new pathway for the allocation of data property rights, which satiates data circulation and usage needs, acknowledging and protecting involved parties’ legal rights, reasonably and accurately defining involved parties’ rights and obligations, to further release data dividends.

 

Right to hold data

The Opinion is based on “data resources,” to explore data rights and data belonging issues. On one hand, data is noncompetitive and can be used repetitively. On the other hand, data rights involve a balance of interests among data sourcers, handlers, and other different subjects. Innovative practices in data property rights allocation should not be obstructed, to maximize the value of data factors. For the reasons above, the term “data ownership” was not adopted. This profound transformation not only means China’s top-level design for data property rights allocation abandoned ownership in legislative thinking, but also that a new and better form of data “quasi-possession” has been brought about. This is to protect the right of subject’s peaceful possession of data, to prevent other subjects’ illegal data acquisition and exploitation.

 

In data factor property right allocation, the right to hold data focuses on data “belonging,” which is equvalent to a weakened or transformed ownership, so as to lay the basis for the construction of data rights. In terms of specific powers, the right to hold data should at least include the right to autonomous management, the data transfer right, and data holding restrictions.

 

Right to process and use data

The subject who holds the right to process and use data is a “data handler.” As long as one becomes a data handler, one can legally process and use data. Only under the premises of “data holding according to law” and “legally acquiring data,” can data handlers have the right to process and use data.

 

Operational Right

In data development and use, the most significant form of achievement is providing data products and services. In the formation of data products, even though the content of data products originates from original data such as users information, data handlers collect data through legal means, and endow higher value to data with a lot of intelligent and physical labor such as screening, in-depth development, and systematic sorting.

 

The operational right of data products mainly refers to competing data interests. Data handlers have restrictive interests against third parties, to prevent competitors in the same industry from cashing in on their data products inappropriately.

 

The operational right of data products mainly refers to network operators’ rights of development, use, trade, and management of the data product or products they developed.

 

 

Deng Hui is a research fellow from the data law research institute at the People’s Public Security University of China.

 

 

Edited by ZHAO YUAN