At present, the construction of data intellectual property protection rules is in full swing. How to give full play to the advantages of the intellectual property system, promote the efficient circulation and utilization of data, empower the digital economy, boost new quality productivity, and promote high-quality development has become a "development question" in the new era.
Zhang Jiyu, Director of the Digital Law Teaching and Research Center of the Law School of Chinese University and Executive Dean of the Institute of Future Rule of Law of Chinese University, and Professor Lu Haijun of the Law School of the University of International Business and Economics agreed that the effective protection of data intellectual property rights needs to rely on the organic combination and joint promotion of law and technology, so as to truly achieve the same frequency resonance between the construction of intellectual property system and scientific and technological innovation.
So, how to break through the difficulties of data intellectual property protection? What is the short-term focus of data intellectual property protection? What are the long-term tasks? Focusing on related issues, the reporter of the rule of law network interviewed Dean Zhang Jiyu and Professor Lu Haijun.
It is difficult to form a consensus on the issue of data protection boundary: what are the key and difficult points in the protection of data intellectual property rights?
Zhang Jiyu: The focus of the construction of the data intellectual property protection system is how to promote the efficient circulation and utilization of data elements through the formulation of a reasonable legal system and an effective implementation system, so as to give full play to the value of data elements, effectively promote the development of science and technology, industry and society, and at the same time protect the rights and interests of personal information and ensure data security.
First of all, data intellectual property rights are still an abstract concept, which actually corresponds to a series of scattered specific protection models in law, including copyright, trade secrets, anti-unfair competition law protection, and database rights in countries and regions such as the European Union. Whether it should be repaired to the current protection system or more suitable to establish a separate data intellectual property protection system is still a controversial issue in theory, and there are different opinions on whether the data source should provide property rights for protection, and the reasonable protection boundary and effective protection mode of data intellectual property rights need to be further studied and discussed.
Secondly, since the sources of data are diverse, the content is complex, and the value of data changes with time and usage scenarios, how to objectively and fairly assess the value of data in order to carry out effective data transactions and compensation for damages is also a key difficulty in the protection of data intellectual property rights.
Again, the regulation of the circulation and utilization of data needs to consider not only the protection of data intellectual property rights, but also the reasonable balance of important rights and values such as personal information protection and national data security.
Finally, the effective protection of data intellectual property rights needs to rely on the organic combination and joint promotion of law and technology. The effective use of encryption, access control, data tracking and other technologies, as well as privacy computing and federated learning technologies that make data invisible, can better protect data and make full use of it.
Lu Haijun: As far as the protection of data rights is concerned, the confirmation of data rights and the non-infringement of data use are both major and difficult issues in data law.
Taking AI generation as an example, does AI machine learning infringe on the copyright of prior works? Who owns the copyright of AI-generated products, and how should they be applied? Where is the boundary between AI-generated works and traditional creations? With the rapid development of AI, the debate has become more and more intense.
In the creative industry, whether it is the author, painter, or screenwriter industry, there is a collective opposition to AI, but in more industrial games and film production, AI has long been used. This reflects that there are great differences in the understanding of the use of data between the public and the industry, and between practitioners of different natures in the industry, and the dividends of industry development have not yet been benefited by the public, so there will inevitably be many collisions between existing interests and emerging forces.
High-quality data products are inseparable from the rule of law network for intellectual property protection: the importance of data intellectual property protection to promote high-quality development?
Lu Haijun: The protection of data intellectual property rights is not only related to the security of the data industry itself, but also to the country's information security.
For the data industry itself, data is their "gold mine", and mining, integrating, storing and using data is the source of output value. Then the confirmation of data rights, whether intellectual property rights or other rights, marks the ownership of data interests, as well as the division and assumption of responsibilities, as well as the clarification of dispute resolution methods. Therefore, the protection of data rights is of great significance to the development of the data industry itself.
At the national level, the development of big data is not only conducive to enhancing comprehensive national strength, but also opens up a new battlefield for the maintenance of national security and international economic competition. Doing a good job in protecting data rights is conducive to maintaining national information security.
Zhang Jiyu: The effective protection of data intellectual property rights can promote the healthy development of the data element market. This is especially true for some data products that have invested a lot of manpower, material and financial resources and have been carefully processed.
High-quality datasets are important for training high-quality AI models. The Interim Measures for the Management of Generative AI Services in mainland China also emphasize the need to improve the quality of training data and enhance the authenticity, accuracy, objectivity and diversity of training data. Therefore, in addition to the massive quantity, high-quality data products often need to carry out a series of work such as data cleaning, data correction, and data integration on the collected data to ensure that the data collection has a wide coverage, good representativeness, and high accuracy, which often requires significant investment.
For such high-quality data products, if there is a lack of intellectual property protection, it is easy to be copied once it is provided to others for use, making it difficult for developers to recover their investment and obtain market returns.
Of course, data intellectual property rights also need to be carefully defined to avoid unduly hindering the rational circulation and utilization of data. At the same time, it is also necessary to pay attention to the problem of data monopoly that may arise.
Rule of Law: What role does the development of digital technology play in developing new productive forces and promoting high-quality development?
Zhang Jiyu: Data is known as the oil of the digital economy. Digital technology plays a crucial role in developing new productivity and promoting high-quality development.
Important documents such as the Opinions of the Central Committee of the Communist Party of China and the State Council on Building a Basic Data System to Better Play the Role of Data Elements, and the Three-Year Action Plan for the × of Data Elements (2024-2026) of the National Data Bureau fully reflect the importance of the full circulation and utilization of data elements for the development of digital technology, digital economy and digital society.
First of all, the rapid development of digital technology innovation has given rise to many new product forms and economic formats, reflecting the strong driving force of innovation for development. For example, from bike sharing to assisted driving and autonomous driving, a new transportation landscape driven by digital technology is gradually unfolding. Tools such as online meetings, automatic translation, and document information extraction have also greatly improved work efficiency.
Second, digital technology is accelerating the upgrading of traditional industries, promoting the transformation of the industrial system to digitalization, networking, and intelligence, improving production efficiency, reducing resource consumption, and promoting the optimization of industrial structure.
Finally, digital technology can empower social governance. Digital technology has broad application prospects in the field of public affairs, for example, the construction and development of Internet courts in mainland China has provided great convenience for the resolution of many Internet-related disputes. Some cities have also applied digital technology to urban traffic management, environmental monitoring and other fields, improving the efficiency of social governance and service quality.
Lu Haijun: The development of the digital economy can not only empower traditional industries, improve production efficiency and reduce operating costs through digitalization, but also breed huge data-related industries. For example, artificial intelligence, big data, cloud computing, etc. Law and science and technology should form a coordinated protection mechanism rule of law network: what is the urgent work to be done to strengthen the protection of data intellectual property rights, and what is the work in this regard in the long run?
Zhang Jiyu: At present, there is still theoretical controversy over the separate legislation on data intellectual property rights in the mainland, but the reasonable and effective protection of data and the necessary protection restrictions are still the focus at present. Therefore, it is first suggested that the Anti-Unfair Competition Law should be amended to establish clearer rules on data, or through judicial interpretation, the necessary unification and standardization of anti-unfair competition rules involving data should be carried out, so as to provide clear and reasonable protection for data, and also avoid excessive competition protection that will bring about the adverse consequences of inhibiting the reasonable circulation and utilization of data.
Second, the current circulation and utilization of public data in mainland China needs to be further promoted and regulated, and clear institutional rules and effective planning need to be established to promote it.
At the same time, many cities in mainland China have already built big data trading centers, and clear "safe harbor" rules should be established for buyers who purchase such data or obtain data use authorization in big data trading centers when the big data trading centers have conducted data review on transaction data sets, so as to better reduce the risks of data buyers and promote the use of data.
In the long run, we need to form a consensus on the basic system of the data element market, promote the construction of a systematic system, and promote the formation of international rules on the protection of data intellectual property rights and cross-border data circulation, as well as the development and improvement of relevant law enforcement cooperation mechanisms.
Lu Haijun: A system for protecting rights and interests that adapts to the characteristics of data itself should be established. However, data-related issues should not be overly specific or isolated.
The protection of data rights and interests should still be placed within the existing legal system of civil law, intellectual property law, anti-unfair competition law, personal information protection law and other laws, and a comprehensive consideration should be made in combination with the existing technological development status and future technological development direction.
In the longer term, the law should keep pace with technological development and support the country's demand for high-quality development and the development of the data industry. China's intellectual property law should move forward, outward, and far-reaching, always grasp the pulse of social development, do a good job in system construction, and truly resonate with scientific and technological innovation.