Research On The Data Rights Of Enterprises

In the era of digital economy,data has gradually acquired the same important status as land,labor,capital,technology and other production factors.However,in the rapid development of our data industry,the protection of enterprise data rights has not been paid more attention to.Under the background of the booming data element market and the surge in the value of data resources,it is of great value and significance to promote the rise of China’s data industry and the prosperity and orderly development of digital economy to expound the establishment foundation,nature and content of enterprise data rights,explore the protection path and exercise restrictions of enterprise data rights,and then promote the institutional construction of enterprise data rights system.1.The major contentsIn addition to “Introduction” and “conclusion”,this paper is divided into six chapters:The first chapter mainly discusses the establishment of enterprise data rights.Data refers to the electronic record of the nature,state and mutual relationship of objective things and can be identified.It is the combination of “information content + electronic form”.Data has multiple legal attributes such as personality attribute,property attribute,social public attribute and national security attribute.Enterprise data mainly refers to the data controlled and used by enterprises.It includes the user data legally collected and utilized by enterprises,and the new data generated on this basis.The attribution of data property rights and interests to enterprises is in line with Locke’s theory of labor property and the efficiency analysis of law and economics,and is also consistent with the value orientation of accession system in traditional civil law.Rights of enterprise data refer to the rights related to data obtained by enterprises according to law based on data collection and processing.In current judicial practice,data disputes between enterprises are adjudicated mainly through intellectual property law and anti-unfair competition law.However,in the face of increasingly complicated data interest relations,Copyright Law and Anti-Unfair Competition Law cannot properly solve all types of data disputes.Establishing the right of enterprise data property,clearly determining the pattern of interest distribution on the data property at the institutional level,should be of great significance to providing a clear legal basis for the data collection,storage,control,use,income and disposal of enterprises.It is reasonable,legal and realistic to protect enterprise data property as a right.The second chapter mainly discusses the new property right positioning and the right framework construction of enterprise data rights.In the era of rapid development of science and technology and constant emergence of new property relations,the identification of property rights should not be confined in the dichotomous system of real right and creditor’s right,and an open,dynamic and constantly developing modern property rights system should be built.Enterprise data property rights are different from the traditional property rights represented by right in rem,creditor’s right and intellectual property rights in terms of form,object and content,and it is difficult to incorporate it into the existing types of property rights for regulation.We should try to design the system of enterprise data right as a new property right.Enterprise data right is a general term of data rights owned by enterprises,or a kind of frame right,whose specific rights should be determined according to the object constituted by specific content.In the construction of enterprise data rights system,the types of personal data and non-personal data,public data and non-public data,basic data and value-added data should not be used as the basis for creating specific rights.Based on the division of the original data and derived data,the usufruct right of the original data and the exclusive right of the derived data are constructed respectively,and different intensity of protection is given,which is more consistent with the characteristics of the diversification of enterprise data and the generation logic of the economic value of enterprise data.To be specific,data usufruct should be created for the original data controlled by the enterprise,so that the enterprise has limited control and use right to the original data according to the legal provisions.It is an effective way to create exclusive rights for derived data,and then strengthen the protection of derived data property of the enterprise.The third chapter mainly discusses the institutional structure of enterprise original data usufruct.The usufruct of original data is to create a new property type for the original data by referring to the usufruct system.The purpose is to coordinate the interest conflicts among multiple subjects of original data and reasonably determine the interest boundary.The usufruct of the original data is obtained based on the factual behavior of the enterprise,such as data collection and storage,and is the original acquisition based on its contribution.The legitimacy and compliance of data collection are the basis for the enterprise to acquire data property rights.“Informed-authorized” is an important prerequisite for companies to acquire property rights over original personal data collected.As the object of the usufruct of the original data,the data is formed after digital conversion of the original information or preliminary screening and sorting.Therefore,the rights of data collection enterprises should be corresponding to the labor it has paid in this process.The usufruct right of the original data is not real right for usufruct,and it has weaker exclusivity and term.From the perspective of the right subject,the right subject of the usufruct right of the original data should be the data controller who invests in the collection,storage,development and utilization of the original data and can decide the purpose and mode of data collection and processing independently.From the perspective of rights content,the usufruct of original data mainly includes two aspects,that is,positive power and negative power.The positive power includes possession power,management power,use power,income power and disposal power.Negative power refers to the right subject forbidding others to carry out specific infringement in order to protect the right from infringement and excluding interference of others.It is reflected that when suffering from or being in danger of improper invasion(harm),the subject of right can claim the right of data deletion,the right of nuisance exclusion,the right of nuisance prevention and other relief claims,so as to maintain the perfect state of the usufruct right of the original data.The fourth chapter mainly discusses the institutional structure of enterprise derived data exclusive rights.Among all kinds of data collected,stored and produced by enterprises,the derived data is the one that enterprises have the exclusive right to control,use and trade.Moreover,derived data can create higher property value for enterprises due to its more prominent property attributes.Based on the reality that the current law is difficult to provide effective protection for the property rights of derived data,it is particularly necessary to build a separate right of derived data,namely,the exclusive right of derived data.The derived data exclusive rights can be structured as follows: The exclusive right of derived data is a new type of property rights with absoluteness and exclusivity.From the perspective of right object,derived data has the characteristics of immateriality and replicability.Of course,the object setting of the exclusive right of derived data must be strictly limited,and all data cannot be included in the objective category of data property rights.From the perspective of the right subject,the right subject of derived data can be a natural person,a legal person or an illegal person organization.The subject of the exclusive right of derived data can include two types: the subject of original right and the subject of successor right.The original right subject can be agreed by the parties.When the parties do not agree or the agreement is invalid,the derived data production enterprise is the original right subject.From the perspective of right content,the exclusive right of derived data mainly includes positive power and negative power.Positive power is the positive behavior that the subject of data exclusive right can carry out on its derived data in order to realize its exclusive right,including control,use,income and disposal.Negative power means that the subject of data exclusive right has the right to exclude others from illegally interfering with his legitimate rights to derived data through his own strength or through legal channels.Of course,with the continuous innovation of data development mode and the continuous expansion of the specific application scope of derived data,there is likely to be a demand for new power content in the future.Based on this,when constructing the legal system of data rights,we should maintain the openness of the content of rights and be able to make explanations and revisions that keep pace with the times.In this way,we can accommodate the rapidly changing data industry and the developing socio-economic mode and try our best to reduce the disadvantages of legal lag.The fifth chapter mainly discusses the principles and limitations of data rights.In the exercise of data rights,enterprises should not only abide by the basic principles of civil rights exercise,but also comply with the principles of reasonable use of data and data security protection.It is more appropriate to take the interest conflicts among the subjects related to data as the starting point of the construction of the content and right limitation of enterprise data rights,and to explain the content and situation that the enterprise data rights should be restricted from the perspectives of the protection of prior rights,the maintenance of public interests and the guarantee of national security.Prior rights and interests mainly include personal information rights,intellectual property rights and other information rights and interests such as trade secrets.The priority protection of personal information rights and interests limits the data rights of enterprises mainly based on four aspects: the right of personal informed consent,the principle of limiting the purpose of personal information processing,the right to withdraw,correct and delete personal information consent,and the rules of personal information transfer and disclosure.Based on the maintenance of public interest,and shall prohibit abuse of rights of data,data using the algorithm of demonstrative obligation,setting a reasonable according to different areas,different types of data,the integrated use of fair use system,mandatory disclosure system,disclosure system and the compulsory license system measures to coordinate the data conflict of interest between different subject.In addition,the exercise of data rights of enterprises should be based on the protection of national security,and enterprises must take the entity responsibility for data protection by types and levels.At the same time,the cross-border flow of enterprise data should be strictly supervised.The sixth chapter mainly discusses the legal protection of enterprise data rights.As a new property right,the legal protection of enterprise data rights should not only rely on the protection of contract law and tort law in various sections of the Civil Code,but also timely carry out special legislation to standardize the definition,ownership,power,circulation and special restrictions of enterprise data rights.In addition,it is also necessary to cooperate with public law to jointly play an adjustment role and realize the coordinated development of data protection and data utilization.The phenomenon of data property infringement has occurred frequently,so it is urgent to provide legal remedies for enterprise data rights.Whether the system of remedy for infringement is properly designed or not determines whether it can play a role in protecting the data rights of enterprises.In view of the most prominent data crawling problem in enterprise data utilization,in the identification of data infringement,we should first distinguish whether the object being crawled is derived data or original data.For derived data,as long as the unauthorized crawling is carried out,no matter the data is in the public state or the non-public state,it should be considered an infringement.For the original data,unauthorized crawling of non-public data should be considered an infringement.Unauthorized crawling of public data requires comprehensive consideration of data scraping methods,scale of the crawled data,and whether the robots protocol is violated to make the final judgment.In terms of tort liability,stopping the infringement,eliminating the impact and compensating for the loss are more appropriate ways of liability.2.Main innovations of this paper:This paper tries to put forward new ideas and methods on the basis of integrating the existing theories,so as to provide new ideas for the construction of data rights system.The possible innovations of this paper are as follows:(1)In order to respond to all kinds of doubts about protecting data as a right in theory and practice,this paper starts from the perspective of system construction of “right + restriction”,and tries to achieve the balance between the protection of enterprise data property,data utilization circulation and data security by clarifying the various restrictions that should be subject to the exercise of enterprise data right.(2)In the construction of enterprise data rights system,based on the division of original data and derived data,the usufruct right of original data and the exclusive right of derived data are constructed respectively,and then implement different protection measures,which is more consistent with the characteristics of enterprise data diversification and the generation logic of economic value of enterprise data.(3)In view of the most prominent data crawling problem in enterprise data utilization,this paper tries to put forward the identification method and standard of infringement on the basis of distinguishing whether the crawling object is derived data or original data,in order to make a systematic and operational institutional response to the outstanding problems in practice.3.Deficiencies and What Need to be Improved in the Paper:(1)The analysis of enterprise data is one of the important problems in the study of property law.Although this paper has made relevant discussions,it is considered that the only important way to solve this problem is to regard enterprise data right as a new property right.However,in view of the importance and complexity of enterprise data rights,the analysis in this paper is only preliminary,and there is still a lot of room for discussion,especially for the definition of related concepts and their relevance and positioning in this new property rights system,which needs further research and analysis.(2)Limited by my knowledge structure and foreign language level,I have a stiff sense of drawing on foreign data legislation system and practical experience,which is not only a major deficiency in this study,but also a direction for future efforts to solve.(3)Due to the lack of enterprise resources and relevant channels,it is not possible to enter large data enterprises for in-depth practice investigation,so there are still many limitations in the collection and absorption of practical data,which may affect the demonstration effect of this paper.However,this paper is only the beginning of the research on enterprise data rights.In the future,I will continue to work in depth and strive to contribute more personal wisdom to the legislation of enterprise data.This is also the direction of the future.