Research On Legal Regulations Of "Data Monopoly"

The discovery,amplification and elementalization of data value has a qualitative impact on the evolution of the economic and social structure.The use of data has become the key to the construction and transformation of corporate business models,and it is constantly reshaping the behavior of consumers.The data economy has also become a new economy,which makes the distribution of social wealth and interest relations present new changes.However,at the same time,the concentration of elemental data,the tremendous expansion of data products,and the huge differences in data-related technical capabilities have triggered social worries about the phenomenon of "data monopoly".However,the private law nature of data and its own characteristics have made the proposition of "data monopoly" questioned.So is "data monopoly" a false proposition?If not,how effective are the existing antitrust law analysis paradigms and regulatory concepts implemented in the data economy?What are the limitations?How should we modify and make up for this and make appropriate institutional arrangements?This is the unfolding logic of this article.However,"data monopoly" is a broad expression of the phenomenon,so the analysis of "data monopoly" should be based on the decomposition of the hidden problems of this phenomenon.Therefore,based on the differences in the scope of the problem domain,this article divides the legal issues it contains into data monopoly,data-based monopoly,and pure data concentration that lacks correlation with monopoly.Among them,data monopoly and data-based monopoly overlap in monopoly forming factors,that is,the control of new production factors of data,so they can be collectively called data-related monopoly,so as to clarify the lines of article analysis.How to understand data monopoly from a conceptual perspective?There may be some differences between economics and law.Economics can define data monopoly as:a situation where only one or a few producers monopolize or have a controlling position in a certain data product or service market;or according to the post-Chicago school theory,define it as:in a certain data product or service market,only one or a few producers monopolize or have a controlling position,and implement anti-competitive behavior.From the theoretical perspective of the antimonopoly law,data monopoly can be defined as:the behavior or state that enterprises or other organizations implement individually or jointly in specific data product markets to exclude or restrict competition,or may restrict competition.However,whether it is economics or law,attempts to define the concept of data monopoly can only help to form a general understanding of the problem.In addition,due to the influence of the attributes of data private law and its own characteristics,the propositions of data monopoly and data-based monopoly have also been questioned and regarded as false propositions.But in fact,whether it is to include data interests under the framework of traditional property rights,or to establish new data property rights,or to adopt a cybernetic viewpoint for protection,it cannot be used as a reason to deny the establishment of the data-related monopoly proposition.On the contrary,the definition of private law attributes,cybernetic claims,and the characteristics of the data itself will play a positive role in the formation of data-related monopoly,and then help to justify the theoretical possibility of the establishment of the data-related monopoly proposition.However,the characteristics of data availability and substitutability cannot be absolute,and are also affected by the subsequent definition of data private law attributes,which cannot constitute a fundamental denial of the possibility of the establishment of the data-related monopoly proposition theory.Therefore,both data monopoly and databased monopoly can be established in theory.The second point of the article is to summarize the reality of the data economy adjustment method and mutual connection,discuss the space and limitations of private law and public law in regulating legal issues in the phenomenon of "data monopoly",and focus on exploring and discussing anti-monopoly.The necessity of law intervention focuses the research content on the regulation of data monopoly by the anti-monopoly law.However,the high fixed costs and low marginal costs of the data economy,network effects and multilateral markets,lack of prices,dynamic multi-dimensional changes and other characteristics that are different from the traditional economy have caused many difficulties in the application of antitrust laws in regulating monopolistic behavior in the data economy.The existence of multilateral markets and network effects help each other to realize the monopoly status in different product markets.The intersection of monopoly forms and market advantages are causal and closely related to each other.The lack of prices in the data economy and the weakening of market boundaries have made the traditional antitrust analysis paradigm partially fail.The first is the definition of the relevant market.In the zero-price situation,the alternative analysis method and the "small but significant price increase" method based on price factors and other hypothetical monopolist tests show more incompatibility in the definition of the data product-related market,while the "small but significant price increase" is also difficult to effectively bridge this through amendments such as "decrease in quality",and it is still subject to methodological flaws.In the case of non-zero prices,both analytical methods are also faced with the challenges of the economic characteristics of data and the constraints of insufficient scalability.However,it cannot be completely denied that traditional antitrust analysis methods still have applicable value in the definition of data product related markets.Repeated inspections of antitrust practices have provided them with a sufficient rationality and legitimacy basis.Therefore,in data products,as far as possible,quantitative and qualitative analysis methods should be used in the definition of relevant markets.But at the same time,it should also weaken the institutional positioning of the relevant market definition as the prerequisite step of anti-monopoly analysis in the new economic market represented by the data economy.The aforementioned dilemma in the definition of the relevant market has also led to the chain reaction of the market dominance that is difficult to effectively determine the dilemma,making it difficult to implement the method of determining the market dominance based on the market share ratio.The development of the data economy requires us to be involved in the "monopoly leverage" effect and the barriers to market entry that may be formed by data concentration.In addition,the dynamic and rapid changes of the data economy have increased the complexity of the problem itself.In addition,the concealment and technicalization of data-related monopoly behavior has also increased the difficulty of applying the anti-monopoly law in the field of data economy.However,from a practical point of view,the transfer of monopoly leverage effect in the data product market is no longer limited to the complementary product markets advocated by traditional economics,so it can be used as a normalized path for data-related monopoly analysis.Moreover,dynamic and rapid changes do not constitute an absolute block to the formation of the dominance of the data product market.In addition,data concentration can completely become an obstacle to market entry in theory,but regulation through the theory of necessary facilities lacks sufficient theoretical basis and operability.Therefore,the breakthrough of the aforementioned application dilemma becomes the key to the anti-monopoly law to effectively adjust the data economy and realize the data anti-monopoly regulation.This paper examines the welfare standards of the antimonopoly law,and dialectically discusses the limitations of the overall social welfare standards and consumer welfare standards from the perspective of efficiency only.Attempt to analyze and dialectically judge,and then consider the adjustment of my country’s anti-monopoly regulatory objectives based on the scientific nature of the European anti-monopoly regulatory objectives,and incorporate privacy into the specific scope of anti-monopoly law analysis and regulation,thereby achieving the concentration of data operators or the effective prevention of privacy infringements that may arise from monopoly agreements.In addition,the failure and modification of the price-centric antitrust analysis paradigm can be solved by expanding the price element to quantifiable "consideration",and actively exploring and recognizing the application of behavioral law and economics theory in the field of data-related monopoly possibility and the role of the complementary method of direct influence law in the judgment of data monopoly,which in turn provides sufficient alternative tools for the identification of data monopoly behavior and the specific development of antimonopoly regulations.Therefore,in general,the construction and improvement of the data anti-monopoly regulatory path must realize the transformation of the antimonopoly regulatory concept that conforms to the law of data economic development,form an institutional supply that matches the new economic structure,and conduct countermeasures under the principle of modest and prudence.The moderate expansion of monopoly supervision,increase the data economy anti-monopoly pre-supervision methods such as interviews and expand the scope of supervision,while achieving effective coordination with other laws and regulations.Specifically,in the process of identifying and regulating data monopoly behaviors,virtual collusion that has produced de facto monopoly agreement effects should be clearly prohibited,and the abuse of market dominance should be based on the orderly selection of analysis tools on a caseby-case basis.The focus of the review of the concentration of business operators should be consistent with the characteristics of the data product market and explore parallel analysis paths outside the law of market share.Finally,combined with the opportunity of the revision of the "Anti-Monopoly Law",the article proposes suggestions on the design and improvement of the anti-monopoly law on the identification path,punishment and relief measures of data monopoly behavior from the perspective of legislation.