China’s National Data Administration, housed at the National Development and Reform Commission, was officially inaugurated in Beijing on Oct. 25. Photo: Jiang Qiming/CNSphoto

Data is among the most important resources in today’s society. Effective resource allocation necessitates appropriate property rights systems to address issues such as when a resource is controlled by the producer, and when the producer must allow other entities or the general public to use it. 

When considering the appropriate property rights system for data, two primary approaches emerge. One approach proposes the creation of a new, comprehensive property rights framework tailored specifically to data, while the other recommends the utilization of existing intellectual property rights systems to govern the interactions between data producers and users. Comparatively, the latter approach is deemed wiser as it avoids the need to reinvent the wheel. 

On the one hand, the second approach aligns more closely with the established practice of data rights confirmation. Existing legal systems are already applicable to the confirmation of rights regarding objects that exist in the form of data. For instance, the object of intellectual property law is various types of information, which exists primarily in the form of data under current technological conditions. 

In terms of copyright law, the novels we read, movies we watch, artwork we appreciate, or music we listen to on electronic devices all exist in the form of data. In terms of patent law, inventions, utility models, and designs often take the form of electronic data. Technical information and business information in the field of trade secrets also exist in the form of electronic data in most cases. 

Therefore, plagiarism of works, unauthorized copying of inventions, and theft of trade secrets are misappropriations of data by nature. Copyright law, patent law, trade secret law, and other intellectual property laws that regulate these acts of data misappropriation have essentially provided a property rights framework for data. 

On the other hand, the second approach is more in line with the theoretical requirements for data rights confirmation. Different types of data require property rights systems tailored to each type. Works protected by patent and copyright law are subject to different property rights rules. 

In terms of rights holder’s control over public display, copyright law provides stronger protection than patent law. According to copyright law, the public display of a painting without the painter’s consent constitutes infringement, and the person who displays the painting without authorization may need to compensate the copyright holder. However, according to patent law, the display of a machine without the consent of the inventor does not constitute infringement, and the person who displays the machine without authorization is not obligated to compensate the patent holder. The rights holder has control over public display by others only when data exists as works rather than as inventions. 

In terms of control over independent creation, however, patent law provides stronger protection than copyright law. If Company A and Company B independently develop the same drug, and A files a patent application one day earlier than B and receives the patent, then only A has the right to market the drug, and B cannot profit from the product, despite having independently developed it. 

In contrast, copyright law is less strict with later creators. If poet A and poet B independently create the same poem, but A finishes one day earlier than B, A does not have exclusive market rights to the poem, and B can use their independently created poem without A’s consent. The rights holder has control over independently created works by others only when data exists as inventions rather than works. 

Pubic big data has recently emerged as a new form of data in addition to works, inventions, technical information, and business information. Public big data is far more information-intensive but less structured than works and inventions. While trade secrets are relatively information-intensive, their confidential nature is distinct from the public nature of public big data. Therefore, it is necessary to design a targeted property rights system for public big data. Nevertheless, public big data is just one of many types of data, and there is no need to design a completely new property rights system for each type. Conflicts between old and new rules will cause problems, even if the inconvenience is accepted. 

While traditional rules were formed under traditional technological conditions and traditional business models, it is not necessarily impossible to adapt those rules to new conditions and models. “Putting new wine in old bottles” has been a common practice in the legal field, making law an effective means of regulating social relations. Social life is constantly changing. Without sufficient flexibility, law may become invalid as soon as it is formulated and may never keep up with the needs of society. Since existing legal systems can already serve to address data rights issues, building new systems from scratch could result in wasted effort. 

Jiang Ge is a professor at the Law School of Tsinghua University. 

Edited by WANG YOURAN