Research On The Legal Protection Of Data Transaction Right Transfer

Data transaction is of great significance to the development of the big data industry.At present,the global big data market is developing rapidly.Guiyang Big Data Exchange expects that China's domestic big data trading market will reach 54.5 billion yuan.If the data source market,technology layer market,the application-layer market and other related markets are taken into account,the scale of the data industry will reach a market of more than 1 trillion.The development of the market requires legal protection,but the current legal system related to data transaction lags behind the development of the big data industry,and it is difficult to provide relevant institutional protection for the transfer of data transaction right.Therefore,this article will take the improvement of legal protection of data transaction right as the research purpose,using comparative analysis,normative analysis and other research methods and starting from the concepts,attributes and types of data to demonstrate the objectivity,property,private right attribute of data,determining that data belongs to a right and providing theoretical support for data transaction right protection.On this basis,it explains the right content and transaction mode of data transaction right transfer.In the end,it will make the provision focused on contract protection of data transaction right transfer and liability regulation,and the specific content includes the following parts.The first part is to demonstrate the civil law principles of data transaction.Firstly,analyze the concept,characteristics and types of data to clarify the scope of data in civil law.By comparing the data with personal information and virtual property,the information attribute and property attribute of the data are highlighted.Information attribute and property attribute are the actual basis for data to be traded.Secondly,demonstrate the private right foundation of data transaction.The General Provisions of Civil Law on data shows that the data has become an object of legal relationship and the property and private ownership of data are theoretically proven in order to establish the possibility of data property right.The data trading platform and the relevant conventions' confirmation of right provide practical support for the establishment of data property right.Finally,it is determined that the name of the data property right is the data right.It is demonstrated that the content of the data property right includes the data control right and the data use right.The data control right includes the data use right.The data use right can also be used as a separate data right because of the diversification of date transaction methods.The essence of data transaction is the transfer of data right.The second part is to demonstrate the civil right in data transaction.Data transaction is a form,and the realization of data right transfer through data transaction is essence includingdata control right and data use right.The determination of the data right holder should be determined at the stage of distinguishing data types and data transaction.The initial data right holder is the user,and the data product right holder in the initial state is the data producer.The data right in the initial state refers to the data control right,including five specific data control rights,such as the right to self-determination of data transaction,the right to protect data integrity,the right to retrieve data,the right to prevent damage,the right to use data.Depending on the transaction contract,the right to data during the transaction will be divided into data control right and data use right.The establishment of data right can respond to the stipulation of General Provisions of Civil Law and establish a new type of civil right.It can provide the right to return for the disputes caused by the data,and can shift the data from anti-unfair competition regulations to private law protection.It can also promote private right subjects to pay attention to their own data,promoting the protection of private right of data,and maintaining the normal transfer of data transaction right.The third part is to demonstrate the selection protection of data transaction mode.There are two types of data transaction modes including the data trading platform inside and outside.The selection protection of data transaction mode is to protect the transfer of data right through the selection of different transaction modes.The data transaction in the data trading platform is more secure and convenient,and the data transaction in the non-data trading platform is more able to reflect the true meaning of the two parties of the transaction and better reflect the freedom of transaction.The underlying data based on its own characteristics and existing space determines that it can only choose to be carried out in a non-data trading platform.Considering that the data trading platform can provide transaction information,transaction trust foundation and the fulfillment guarantee of transaction for both parties to the transaction,the transaction of data products should be conducted within the data trading platform in three ways: online data transaction,offline data transaction and escrow data transaction.The fourth part is to demonstrate the contract protection of data transaction.The contract protection of data transaction is how to realize the guidance of the contract to the transfer of data right.At the contracting stage of data transaction,the types of tradable data and restrictions on contracting should be clarified.At this stage,determining the types of tradable data by contract is not to replace the provisions of the mandatory law with voluntary autonomy,but to build the implementation of private law on the basis of the provisions of the mandatory law.In the performance stage of data transaction,the respective rights and obligations of the parties to the transaction and the performance of appropriate standards are clarified.The performance of the underlying data transaction is that users enjoy the services of the service provider.The service provider collects and uses the data in accordance with the agreement of the authorization agreement.The performance of the data products transaction is that the data seller receives the payment and transferring the data control right or data use right.The data buyer enjoys the data control right or data use right,and pays the payment in time according to the contract.Considering the impact of data trading platforms on datatransaction,the contract protection of data transaction should also recognize the promotion of data trading platforms on data transaction.The fifth part is to demonstrate the liability of data transaction.It mainly refers to civil liability and aggregate liability.Civil liability is achieved through the establishment of contractual liability and tort liability to protect data transaction,including cooperative and non-competitive cooperation.The default judgment of the underlying data transaction is whether the data buyer collects and uses the data in accordance with the agreement of the authorization agreement,and its responsibilities include damage compensation and the exercise of data control.The default judgment of the data product transaction is whether the two parties of the data transaction are in accordance with the contract in fulfilling the rights and obligations of both parties.The liability includes the general contractual liability,such as damage compensation,and it also includes the exercise of data control right and data use right.The liability for infringement of data transaction is to protect the transfer of data right by clarifying the infringement and the path of infringement.The infringement mainly refers to the collection and use of the underlying data without user permission and the transaction and use of data products without the permission of the data producer.The path of undertaking is through the expansion of network tort liability and the exercise of data right.The data transaction of the contractual liability and tortious liability is mainly the collection and use of the underlying data beyond the authorized scope and the damage payment of the data product.In this case,the right holder can demand both tort liability and breach of contract liability.The aggregate liability of data transaction is mainly to protect data transaction through the assumption of other liabilities than civil liability including criminal liability in criminal law,administrative liability in administrative law and regulatory liability in other normative documents.