Based on the special attributes of public property and scenario-based application practices of public data,the commercial use of public data is an important way to unleash its economic value.The existing legal system has initially established the ownership rules of public data as public property,yet it falls short in effectively regulating its commercial use.Therefore,it is necessary to develop specific rules for public data to guide and regulate its commercial use.By distinguishing between the dual behavior types of administrative and market entities,examining the accessibility of public data,the legality of methods employed and the justification of actions taken,the protection boundary of commercial use of public data can be clearly established.Accordingly,predicated on this bifurcation of entities,it is imperative to delve into the governance mechanisms and meticulously refine the rules for commercial use of public data,founded on the fundamental principles established respectively.
The empowerment model and behavior regulation model of data protection is complementary,with dual goals of safeguarding data rights and facilitating data circulation.Therefore,the object,subject,and effectiveness boundary of data protection should be accurately defined.As object of data protection,data is an independent civil right entity that should have its own legitimacy and value,and should not be limited to enterprise data,derivative data,collective data,or non-public data.The subjects of data protection are ultimately natural persons,legal persons,or unincorporated organizations belong to"humans".If data collected and processed by entities other than"humans"is legally protected by"humans",remedies can be sought through revocation and pursuing tort liability.The rights and interests in data protection should be confined to legally recognized data acts,including permission from the rights holder,being profitable,no-conflict with prior rights and interests,no harm to the interests of the state,society,or others,and not impeding others from implementing it reasonably or in good faith.Considering the current legislation and law enforcement that's insufficient to reflect the requirements for the object,subject and effectiveness boundary of data protection,unified legislation based on the Data Security Law is necessary.The China National Intellectual Property Administration and the National Data Office should jointly formulate and issue administrative enforcement measures for data protection.Due to the close interrelation between information,data,and intellectual property,it is more appropriate to incorporate data into the intellectual property legal system and establish specific systems therein.
With the enhancement of machine learning and artificial neural networks,artificial intelligence(AI)technology has made rapid progress,evolving humanoid intelligence capable of independent innovation.The conventional single human innovator has branched into a dual-dimensional model,encompassing both human and AI,creating a"ternary innovation pattern".The"anthropocentrism"in innovation is now under threat,shifting towards"post anthropocentrism",and this transition is poised to profoundly affect the justification of intellectual property.Under the background of autonomous innovation of AI,the logical premise of the labor theory of property and personality theory of"anthropocentrism"contradicts the fact of the lack of"human"elements,rendering these theories impractical.Similarly,the incentive theory,rooted in"mechanical utilitarianism",not only faces the logical dilemma of lacking subject motivation,but also confronts the difficulty to mitigate the double-edged nature of AI technology,proving inadequate for theoretical interpretation.Conversely,a social planning theory anchored in"social centrism",implementing the"balance theory",and emphasizing the"distributive justice"and"abundance in the public domain",aligns with the demands of AI era.It can effectively circumvents the trap of"human"element lack,solve the dilemma of the dual-edged relationship between subject motivation and technology,and stimulate innovation while balancing the dissemination and utilization of knowledge,furthering human self-realization and advancing social fairness and prosperity.
The cultural world displays extensive interdependence,which dictates that in the copyright law,there is an extensive interdependence among subjects and their actions,objects,and between subjects and objects.Accordingly,the rights of each subject should be structured in the same way.The copyright system encompasses three subjects:authors,disseminators and users based on their involvement in the creation,dissemination,consumption and recreation of the works,which entitles them to copyright,neighboring rights and rights of use respectively.These three categories of subjects,along with their respective rights,constitute the three pillars of copyright law.A complete set of foundational norms of copyright law can only be established when the rights and obligations of each subject mutually support one another,and it can regulate comprehensively the basic legal relationships of copyright law,promote cultural development,and finally,achieve the basic goals of the copyright law.
The legislation on data intellectual property represents a new legislative initiative in the intellectual property field and in the big data era.The rationality behind such legislation is rooted in the compatibility of the scope and structural framework of intellectual property with data property empowerment,the theoretical justification of intellectual property,such as labor theory and contract theory for data property empowerment,as well as the legal support provided by the open legal system of intellectual property and pre-existing data protection experience.On this basis,the basic legal relationship of public data sets as the object of rights and the data set manufacturer as the subject of rights,the authorization model of exclusive use rights and content expansion rights as substantive elements and registration as procedural requirement for obtaining rights,as well as the rights confirmation mechanism involving multiple dimensions such as the determination of rights effectiveness,rights limitation rules,and rights relief system,together constitute the basic normative construction of data intellectual property.At the same time,in view of the significant differences in the use and circulation of personal data,business data,and public data,data property should be classified for protection in the process of data intellectual property legislation.Special provisions,industry guidelines,or guidance,built on general legal rules,are proposed to effectuate a structured separation of intellectual property rights for personal data,business data,and public data.
