衍生数据财产权保护的证成与架构

Justification and Framework for the Protection of Derived Data Property Rights

摘要: 数据作为一种全新的生产要素，被誉为数字信息时代的“新石油”，深刻改变着社会生产方式和社会治理模式。其中，衍生数据成为市场主体取得市场竞争优势的重要支撑。与此同时，随着衍生数据的激增，衍生数据纠纷也愈演愈烈。由于我国衍生数据立法暂付阙如，法院不得不回避衍生数据权属问题，转而根据既有的法律审理衍生数据纠纷案件。但是，这种处理方式存在着裁判标准不一与保护强度不足的问题。而衍生数据财产权保护模式存在诸多优势，衍生数据契合了财产权客体要求，能够得到劳动财产权理论、激励理论等理论支持。文章根据衍生数据特性提出构建衍生数据新型财产权制度，明确赋予数据处理主体包括衍生数据持有权、许可权、处分权在内的三项财产权利。同时，为促进数据流通与共享，通过合理使用和权利保护期限等权利限制，实现衍生数据财产保护与公共利益的双向平衡。

Abstract: Data, as a brand-new factor of production, is hailed as the “new oil” of the digital information age, profoundly changing the mode of social production and social governance. Among them, derived data has become an important support for market entities to gain market competitive advantages. At the same time, with the surge of derived data, disputes over derived data have become increasingly fierce. Due to the absence of legislation on derived data in China, courts have to avoid the issue of ownership of derived data and instead hear cases of derived data disputes in accordance with existing laws. However, this approach has problems such as inconsistent adjudication standards and insufficient protection intensity. The protection mode of property rights in derived data has many advantages, and derived data meets the requirements of property rights objects, which can be supported by theories such as labor property rights theory and incentive theory. Based on the characteristics of derived data, this paper proposes to construct a new-type property right system of derived data, and explicitly endows data processing subjects with three property rights including the right to hold, the right to license and the right to dispose of derived data. Meanwhile, in order to promote the circulation and sharing of data, restrictions on rights such as fair use and term of protection are adopted to achieve a two-way balance between the property protection of derived data and public interests.