Unpacking data: China’s ‘bundle of rights’ approach to the commercialization of data

Abstract

The scarcity and economic value of data have been widely recognized in the literature on economics1 and law,2 earning it the title of being ‘the most valuable resource’ in the world today, according to a cover article in The Economist.3 In China, where the digital economy has developed rapidly, ‘data’ was recently recognized by its national macro policy as a new crucial factor of production alongside land, capital, knowledge, technology, and labour.4 Accordingly, the key question is how the rights to this resource should be characterized and allocated in order to facilitate the efficient flow and use of data and promote the development of the overall digital economy. There is currently no unified regulatory approach adopted across jurisdictions.5 Despite extensive debate among legal scholars, no consensus has been reached on how the law should protect and utilize data resources.6 On the one hand, some argue that the law should not accord property rights over data given that data is intangible,7 which risks giving rise to a multiplicity of stakeholders and competing claims.8 They argue that data law should instead focus on the acts of accessing and using data, such as through defining and regulating the improper crawling of data.9 On the other hand, others argue that the law should create data property rights, and have proposed different models of property rights, including the classic ownership-usufruct (所有权-用益) approach,10 the intellectual property model,11 and a novel property rights model tailored specifically for data.