Analysis of data intellectual property protection
Analysis of Data Intellectual Property Protection
Yan Jingchen, Hubei Hechu Law Firm
Yan Jingchen, Hubei Hechu Law Firm
Abstract:Data resources are the core elements of the development of the digital economy, and the digital rule of law is the integration of the digital economy and the rule of law. Based on the thinking in the practice of work, study, and practice, the author briefly explains the significance and existing problems of data intellectual property protection, and puts forward relevant reference and suggested measures, hoping to serve as a useful reflection on the experience and model of intellectual property protection in the context of digital rule of law.
Data resources are the core element of the development of the digital economy, and the digital rule of law is the integration of the digital economy and the rule of law. By empowering the rule of law with digitization, it promotes the digital development of the rule of law field and shares the achievements of the development of the digital economy. The author only combines the thinking from work and learning practice to briefly explain the significance and existing problems of data intellectual property protection and propose relevant reference suggestions and measures. It is hoped that this can serve as a valuable reflection on the experience and models of intellectual property protection in the context of digital rule of law.
Keywords: digital rule of law, intellectual property, protection
Keywords: digital rule of law; intellectual property right protect
Introduction:
The value of data lies in circulation, the effective use of data not only improves efficiency, but also improves the quality of products and user experience, especially the survival and development of some emerging industries still depends on the collection and utilization of data, through the processing of raw data, to create new derivative data products and services, so as to create the regenerative value of data, and then also promote the overall progress of social economy and industry. Of course, we should also note that the huge labor paid by network service providers in the process of legally collecting and managing data, and whether their legitimate rights and interests such as data control, processing, and income are protected are worth exploring and considering.
The digital economy has gradually become the main source of power to promote the economic development of the mainland, and it is also an important direction of the future economic development of the mainland[1]. Issues such as data leakage and technology ethics are also emerging on the industrial landscape, and the author only briefly shares the perspective of data intellectual property protection, which is becoming more and more prominent in the field of online platforms.
1. Overview of the digital economy
The report of the 20th National Congress of the Communist Party of China proposed to "accelerate the development of the digital economy, promote the deep integration of the digital economy and the real economy, and build a digital industrial cluster with international competitiveness". The integration of the digital economy and the rule of law, empowering the rule of law with digitalization, and promoting the digitalization of the rule of law also bring new development opportunities and challenges to the protection of intellectual property rights.
The digital economy has gradually become the main source of power to promote the economic development of the mainland, and it is also an important direction of the mainland's economic development in the future. Massive data output is a convenient service, but based on the highly open and free Internet virtual space, which is also accompanied by severe security challenges, the network is also illegal, the content of data, the legal compliance of data sources, the rationality of data technology and legal risk prevention and control are indispensable parts of our digital rule of law era.
In the face of the new challenges of the digital era, all kinds of market entities follow public order and good customs, adhere to the mainstream value orientation, promote the reshaping and reform of the rule of law model with digital as the connection point, and build a normative system of digital rule of law under the existing rule of law framework.
II. The significance of data intellectual property protection
The optimization of the digital economy and business environment has promoted the changes in the network ecology and given birth to the reshaping of the competition model, and the ecological pattern of the basic operators, Internet enterprises and other platforms that provide basic network facilities to occupy the center of the industrial chain may change.
Intellectual property rights promote economic development and protect consumer rights and interests, which are very important for promoting social progress, economic development and civilization building. Accelerating the improvement of the intellectual property protection system in the era of digital rule of law is conducive to promoting the healthy development of digital rule of law, and is also a concrete embodiment of our good business environment.
(1) Contribute to the construction of spiritual and material civilization
Intellectual property is closely related to our daily life, stimulates the creation and dissemination of excellent works, brings material and spiritual cultural products to the society, makes people's living standards and quality of life continue to improve, and plays an important role in promoting the development of the digital economy and social progress.
The protection of intellectual property rights not only protects the enthusiasm, innovation, property rights and personal rights of the right holders, but also promotes the development of cultural undertakings, and at the same time, contributes to the construction of a business environment based on the rule of law. Therefore, we should not only learn to use the intellectual property system, register intellectual property rights to protect cultural creations, but also try to consider taking the initiative to report, complain, and piracy infringements, and actively protect rights in accordance with the law.
(2) Contribute to the reduction of infringements
In the era of digital rule of law, intellectual property protection has shown great potential in the economy, and some institutions and enterprises have achieved economic goals through the collection, collation and use of network information, or used this information as important data support for business activities, so as to promote the development of the digital economy. In this process, some criminals will use the Internet platform to obtain and disseminate through illegal means to obtain economic benefits. There are even some unscrupulous individuals who use the information collected to carry out criminal activities.
To this end, the mainland has strengthened the protection of intellectual property rights through the formulation of relevant laws and regulations, so that the development of digital rule of law has been carried out in a more orderly manner, and the protection of intellectual property rights has been improved with the help of laws.
(3) Contribute to promoting the healthy development of digital rule of law
The Cybersecurity Law, the Data Security Law, the Personal Information Security Protection Law, the Regulations on the Security Protection of Critical Information Infrastructure, the Measures for the Cybersecurity Review, the Measures for the Security Assessment of Cross-border Data Transfer, the Interim Measures for the Administration of Generative Artificial Intelligence Services, and other relevant laws and ethics have guided and regulated the collection and use of data and information, which also has a deterrent effect on all kinds of infringement of others' legitimate intellectual property rights and ensures the healthy development of the digital economy. Protecting data and information security can also lay a good foundation for the rational use of digital information technology, promote the full play of the advantages of digital information technology, and help promote the healthy development of digital rule of law.
III. Problems in the protection of intellectual property rights in the era of digital rule of law
(1) The era of digital rule of law has given rise to new challenges
With the continuous development of information technology and economy, the digital rule of law is developing rapidly, and data information is a key element in the digital rule of law, which is facing a greater risk of leakage. In the era of digital rule of law, the risk of intellectual property disputes and interest disputes caused by new business models is increasing, and many disputes and hot cases have been triggered in new technologies, new formats and new fields such as big data, artificial intelligence, and blockchain.
Issues such as whether AI-generated content constitutes a work, the criteria for judging originality and the definition of the creative subject, there may be information asymmetry or inverted interests in the network ecology of individual large Internet platforms or upstream rights holders under the new business model, and of course, there may also be related problems such as inconsistent rules.
Judging from the cases of public search, it has become the norm for the network ecology composed of large Internet platforms and massive communicators to exclude joint infringement by relevant online platforms or related communicators. These are all new disputes under the digital rule of law, and these disputes may involve changes or increases in infringement methods, which also implies how the regulatory logic is to achieve a balance between the transparency of algorithms and the protection of intellectual property rights and trade secrets.
(2) Internal order and protection of boundaries
The cost of reproduction of digital products is relatively low, and the speed of dissemination is also relatively fast, so the scope of infringement is naturally more extensive, and the value of data information is becoming more and more prominent, and has gradually become one of the important resources competing for each other in the digital economy. In order to expand business benefits, institutions illegally collect other people's data and information, and use them recklessly, so as to gain more market share and economic benefits.
The development of the digital economy has made people enjoy the convenience of digital technology to life and work, while the boundaries of data and information have also been diluted, and the pursuit of free sharing has become the norm, and intellectual property protection is the private right to protect the legitimate rights and interests of the right holder.
(3) Problems existing in rights protection
Our awareness of popularizing the law has been greatly enhanced, but our awareness of protection is still relatively weak. Traditional intellectual property protection measures have shortcomings such as difficulty in confirming rights, obtaining evidence, and identifying rights, which cause great obstacles to the rights protection of rights holders. First of all, it is difficult to confirm rights, which is the basis for intellectual property rights protection, but the process of confirming intellectual property rights is very complex and cumbersome, and the cycle is relatively long, and the difficulty in confirming rights is mainly reflected in the long time span and high cost of confirming rights caused by complex confirmation procedures; Prone to tampering and frequent data leaks, the people's courts need to distinguish the legitimacy of the copyright protection platform and the authenticity and credibility of the data, which has high requirements for the courts. Therefore, it is still difficult to defend rights.
IV. Paths for the protection and protection of intellectual property rights in literary works
Due to the limitation of space, combined with the actual situation of infringement of one's own literary works, this paper briefly explains the judicial practice of rights protection paths by taking written works as an example. The right holders of literary works mainly start from the aspects regulated by the Copyright Law of the People's Republic of China, the Anti-Unfair Competition Law of the People's Republic of China and the Criminal Law of the People's Republic of China, and file rights protection lawsuits against certain infringers or network service providers.
According to article 4 of the Supreme People's Court's "Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Infringement of the Right of Information Network Transmission", where there is evidence proving that network service providers and others jointly provide works, performances, audio and video recordings through division of labor and cooperation, etc., and that joint infringement is constituted, the people's court shall order them to bear joint and several liability. Where network service providers can prove that they only provide network services such as automatic access, automatic transmission, information storage space, search, linking, and file sharing technology, and assert that they do not constitute joint infringement, the people's courts should support it.
(1) Circumstances of infringement of participation in the division of labor and cooperation, or organization of editing
Article 1194 of the Civil Code of the People's Republic of China stipulates that "network users and network service providers who use the network to infringe upon the civil rights and interests of others shall bear tort liability." Where the law provides otherwise, follow those provisions. This article stipulates that network service providers shall bear separate tort liability for infringement due to their own infringement.
Network service providers should promptly take necessary measures against repeat infringing user accounts, and where there are active actions of repeated organization and editing, or where network service providers upload and store works on their own servers and provide them to the public through information networks without the permission of the intellectual property owner, there is an intentional intention to jointly provide the work subjectively, and there is an objective act of jointly providing the work, and the previous upload act and the subsequent direct charging act are only internal division of labor, and should be based on the whole, Viewed from a continuous perspective, it is a direct infringement of intellectual property rights.
In the case of intellectual property ownership and infringement dispute (2022) Min 0206 v. Qiantuo No. 6220, the Huli District People's Court of Xiamen City uploaded and sold a total of 98,900 words of works involving "Anthology of Appearance" [2] (33,400 words) and "Analysis of the Role of Stock Option Incentive Mechanism in Corporate Governance" (71,700 words) without unauthorized permission, and the network service provider has apologized for the infringement in the "Rule of Law Daily" and "China Business Daily".
(2) Circumstances of infringement that should have been known or known
Article 9 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Infringement of the Right of Information Network Transmission stipulates that the people's court shall comprehensively consider whether it constitutes a proper knowledge based on whether the specific facts of the network user's infringement of the right of information network transmission are obvious, and the core of this is to determine whether the network service provider has fulfilled its duty of reasonable care.
Knowledge payment is already a well-known fact, every knowledge point is a wealth value that can be realized, so the rigor of intellectual property protection has become an important part of the digital rule of law, as a network service provider that provides information services to the public and operates professionally to the outside world, the services it provides have obvious commercial purposes, and it should bear a higher duty of care for the legitimacy of the services provided. If the network service provider breaks through the essence of the network service, has a division of labor, cooperates, or can reverse the reasonable judgment that there are acts such as uploading and storage, it is very likely to bear adverse consequences if the evidence is insufficient.
V. Measures for the protection of intellectual property rights in data to optimize the business environment under the rule of law
Article 65 of the Regulations on Optimizing the Business Environment (Decree No. 722 of the State Council) clearly stipulates that "the pace of the issuance of rules and administrative normative documents shall be coordinated and reasonably grasped, and the effect of the policy shall be comprehensively evaluated". For the phased problems in the process of enterprise development, we should pay attention to giving full play to the initiative of the market, not only to strengthen the norms, but also to rely on strengthening the protection of intellectual property rights to promote development. To optimize the business environment under the rule of law, it is necessary to adapt to the requirements of the times for the development of the digital economy, and the relevant response measures for the intellectual property protection system are as follows.
(1) Promote the improvement of the intellectual property protection system
The platform economy is an important part of the digital economy in mainland China, and the side effects of certain operating models constructed by online platforms through a relaxed legal and policy environment have already appeared. On the one hand, an important task that needs to be completed is to strengthen the improvement of relevant laws and regulations, introduce a series of new obligations and responsibilities for digital services, and consider the introduction of departmental rules to clarify and refine the evidence preservation and review standards for the ownership and authorization chain of online platforms, so as to give full play to the guiding role of the law, so that relevant stakeholders have clear operation methods and standards, reduce industry chaos, and further strengthen norms, so that the protection of intellectual property rights has laws to follow and rules to follow. On the one hand, the relevant government departments should take large-scale Internet platforms as an important starting point to guide and implement relevant laws and regulations on intellectual property protection in line with the current development of digital rule of law and the public's demand for intellectual property protection, so as to create a civilized online ecology and share a better digital life.
(2) Strengthen the transformation of governance responsibilities for internet platforms
In order to prevent the continuation of infringement and the expansion of the consequences of infringement, network service providers actively use emerging technologies to confirm and use rights, and a variety of legal and compliant blockchain tools are widely used for evidence collection and preservation in the fields related to judicial administration.
In addition, the maturity of filtering and comparison and the optimization of algorithm technology have enhanced the supervision ability of network service providers, and it is technically possible to actively identify and deal with infringements. In the face of continuous and repeated infringement, the right holder often claims its rights through the notice-takedown rule, and in practice, it is generally difficult to effectively stop the infringement, and the network service provider as a large Internet platform can effectively stop the infringement if it can take the necessary technical filtering measures in a timely manner, which is not only highly efficient, but also achieves relatively good results, so the transformation of the governance responsibility of the Internet platform still needs to be further strengthened.
(3) Strengthen the construction of talent teams and increase high-quality jobs
Talent is the core capital, and the increase of professional positions on the platform is also conducive to providing effective employment for the society, and based on the intervention of intellectual property lawyers, it guides market players to gradually form a benign business model of green ecology through the cooperation of technology and stakeholders.
Conclusion:
To sum up, in the era of digital rule of law, it is necessary to find a balance between the protection of intellectual property rights and the promotion of the dissemination and utilization of works in the process of development. Strengthening the protection of data intellectual property rights, giving full play to the role of intellectual property rights in stimulating innovation, in-depth international cooperation and development of data intellectual property protection in the era of digital rule of law, and creating a confident and prosperous digital rule of law culture are also concrete manifestations of our good business environment.
Bibliography:
[1] Yan Jingchen. Thoughts on personal information protection under the digital economy[J].Cordon,2022(21):5-8.)
[2] Zhang Yu, Yan Jingchen. Enterprise data compliance and criminal legal risk prevention and control[J].Legal Expo,2021(22):95-96.)
[3] "Anthology of Appearance", Rule of Law Daily, last accessed 2023-09-10.
About the Author:
Mr. Yan Jingchen is currently a partner of Hubei Hechu Law Firm, an expert member of the Trust and Fund Arbitration Research Committee of the China Arbitration Law Research Association, a researcher of the Beijing Lawyers Law Research Association, an executive director of the Wuhan Intellectual Property Research Association, an expert of the "Finance and Arbitration" think tank of the Financial Arbitration Court of the Xi'an Arbitration Commission, and an expert of the International Arbitration Service Center of the Zibo Arbitration Commission. He is one of the first batch of lawyers specializing in intellectual property law and finance, securities and insurance law in Hubei Province, and has served as an arbitrator for more than 30 domestic and foreign institutions such as the Central Asian International Arbitration Court (CACIA), the Thai-Chinese International Arbitration and Mediation Center (TCIAC), Shenyang, Xining, Xiamen, Quzhou, etc.
Present position:
Partner, Hubei Hechu Law Firm
Social Positions:
He is an expert member of the Trust and Fund Arbitration Research Committee of the China Arbitration Law Research Association
Researcher of the Construction and Real Estate Research Office of the Training Department of the Chinese Behavior Law Society
Researcher of Beijing Lawyers Law Research Association
Member of the Intellectual Property Professional Committee of Hubei Lawyers Association
Executive Director of Wuhan Intellectual Property Research Association
Member of Hulunbuir Administrative Reconsideration Advisory Committee
Expert of the "Finance and Arbitration" Think Tank of the Financial Arbitration Court of Xi'an Arbitration Commission
Expert of the International Arbitration Service Center of Zibo Arbitration Commission
Arbitrator of more than 30 domestic and foreign arbitration institutions, including the Central Asia International Arbitration Court (CACIA), the Thai-Chinese International Arbitration and Mediation Center (TCIAC), Shenyang, Xining, Xiamen, Quzhou, Ezhou, Huanggang, Xiangyang, Jingmen, Chengde, Jining, Dezhou, Zibo, Jinzhou, Shuozhou, Jincheng, Linfen, Tongling, Suzhou, Loudi, Yingtan, Jiujiang, Fuzhou, Nanyang, Xuchang, Kaifeng, Yulin, Wuzhou, Liuzhou, Guyuan, Suining, Baoshan, Shaoguan, Chengde, and the Hong Kong World Arbitration Center.
At the same time, he serves as an expert in the intellectual property expert database of Shandong, Fujian, Guangxi, Wuhan, Hangzhou, Taiyuan, Shenyang, Urumqi, Xiangyang, Chongzuo, Wuzhou, Huainan, Ya'an, Yangjiang, Quanzhou and other provinces, municipalities and autonomous regions.
In 2021, he was selected as one of the first batch of professional lawyers in intellectual property law and financial, securities and insurance law in Hubei Province, and in 2021, he was awarded the title of outstanding contemporary poet, and his works have been published in nearly 3 million words across the country, among which: "Principles of Intellectual Property Infringement Litigation in the Internet Environment" and "Identification and Prevention of Criminal Acts Involved in Internet Financial Innovation" won the 4th and 5th places in the 2015 Internet Recommended Book List respectively, and "Using Intellectual Property Strategy to Enhance Enterprises' Independent Innovation Ability" Won the 20th place in the 2019 Internet recommended book list, "Research on Digital Rule of Law and Business Environment" - won the third prize of the National Local Financial Law Research Association Presidents Alliance Forum in 2023, and "Analysis of Data Intellectual Property Protection" - won the Excellence Award of Shanxi Law Society in 2023.
His representative works include Research on Intellectual Property Arbitration in the Digital Economy, Research on Digital Rule of Law and Business Environment, Research on Corporate Compliance in the Digital Economy, Analysis of the Connection between Sports Arbitration and Commercial Arbitration in Professional Ball Contracts, Reflections on Personal Information Protection in the Digital Economy, Effective Strategies for Improving Corporate Governance Structure, Construction Strategies for Corporate Criminal Compliance, Analysis of Data Intellectual Property Protection, Analysis of the Role of Stock Option Incentive Mechanism in Corporate Governance, More than 30 professional papers have been published in newspapers and magazines at or above the provincial level, such as "Chutian Rule of Law", "Rule of Law Expo", "Cordon", "Legal System and Economy", "Legal System and Society", "Legal Daily", "China Business Daily" and other professional papers. He is the author of "Anthology of Appearance", "Appearance Economy", "Selected Research on Judicial Practice of Construction Projects" and other monographs.
Practice Areas:Intellectual Property|Digital Economy|M&A & Restructuring|Bankruptcy & Liquidation|Criminal Defense & Compliance.