Data Rights Law 1.0

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Figures

Figure 1. Three Ways of Data Remixing.

Figure 2. Gradient Leap Model of Information Internet, Value Internet and Order Internet.

Figure 3. The Relations of Data Rights.

Figure 4. The Data Rights Law and Other Forces of Social Control.

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Tables

Table 1. Sketch of the Three Generations of Human Rights.

Table 2. Some Human Rights Protection Mechanisms.

Table 3. Evolution of Production Mode and Dominant Resources.

Table 4. Characteristics of Data Rights.

Table 5. Differences between Human Rights, Real Rights and Data Rights.

Table 6. Theories of Data Rights.

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Preface

The digital economy is on the rise globally. To promote opening and sharing with the development of the digital economy, countries around the world are working together to build a destiny community of cyberspace. In December 2015, President Xi Jinping delivered a keynote speech at the opening ceremony of the Second World Internet Conference emphasizing that the Internet is the common home of mankind. Countries should jointly build a destiny community of cyberspace to promote the interconnection and sharing of cyberspace, and create a better future for human development. In December 2017, Xi Jinping once again emphasized in his congratulatory letter to the 4th World Internet Conference that he respects cyber sovereignty, wishes to carry forward the spirit of partnership, and calls for jointly taking the Internet and digital economy express. On May 26 of this year, 2018 China International Big Data Industry Expo opened in Guiyang, Guizhou Province. President Xi Jinping further pointed out in the congratulatory letter to the meeting that the new generation of information technology represented by the Internet, big data and artificial intelligence is changing with each passing day, which has a major and far-reaching impact on economic and social development, state management, social governance, and people’s lives in all countries. Grasping the important opportunities of the development of big data, promoting the healthy development of the big data industry, and handling the challenges of data security and cyberspace governance require countries to strengthen mutual exchanges and deepen communications and cooperation.

Since the 18th National Congress of the Communist Party of China, with socialism with Chinese characteristics entering a new era, China’s big data development has also entered a new era. General Secretary Xi Jinping personally served as the leader of the Central Cyber Security and Informatization Leading Group and put forward the strategic goal of striving to build China into a network power, and promoted with the Two Centenary Goals. On October 9, 2016, when the Political Bureau of the CPC Central Committee conducted the thirty-sixth collective study on ← xxi | xxii → the implementation of the strategy of strengthening the country by the network, General Secretary Xi Jinping further proposed six requirements of acceleration, including “accelerating the promotion of China’s international talking right and the right to formulate rules for cyberspace.” This sets a new direction for the construction of rule of law in China, and puts forward new expectations for the study of legal theory in China. We must conscientiously study and understand the profound connotation of Xi Jinping’s Internet rule of law, and actively carry out the attentions and researches on the frontier issues of law including data rights, data security and data sovereignty, and give full play to the functions of law such as promotion, regulation, guidance, and protection, and carry out widespread theoretical researches and legislative explorations in the fields of big data, Internet, etc., and actively carry out relevant plans of legislative, arrangements of legislative project and design of legal principles, value balance, systems and mechanisms of law enforcement in the field of Internet, and participate in the formulation of international rules, and use the Internet rule of law to better support the national cyber development strategy.

In May of this year, the European Union promulgated the “General Data Protection Regulations” with obvious oaths, which becomes the leader of the global digital economic order. In fact, since the 1980s, European and American countries have spared no effort to promote respective policies of personal data protection globally, and have begun to influence and export rules of data protection. This shows that in the era of digital economy, whoever first achieves effective governance of data has the initiative and voice of information globalization. Based on forward-thinking of the development of new technologies, EU legislators set new rules on the basis of higher civilizations. This is also a kind of push. We must clarify the key points and main tasks of the construction of rule of law in cyberspace as soon as possible, and improve the comprehensiveness and systematicness of the rule of law of the Internet, and form a dominant international power of data rights regulation in the construction of system for the perfection of data rights law.

The biggest international political change in the early twenty-first century was the continued rise of China. For a country, the real rise is to provide a civilization for the world. The reform and opening up has enabled China’s comprehensive strength to rapidly increase, gradually established China as a great power in the international community. It let China establish an ← xxii | xxiii → image of great power and get closer and closer and walk up the center of the world stage. At the same time, however, China, as a responsible power, has not played its role in the formulation of international law for a long time. At present, China is adjusting its posture and image, changing from the participant of the international order to the role of constructive leaders in the system. Strengthening the legislation of the digital economy has great significance on the building and perfecting of a data governance system that is in line with China’s national conditions and a new kinetic framework that promotes innovation and development. In this regard, we have a consensus that if China’s laws are going to be introduced to the world, the law of the digital economy is the most likely law. We shall rely on the concept of the development of great powers and solve the future problems with Chinese wisdom, especially focusing on the new civilization form of digital civilization, and looking for the path of value and order reconstruction in the profound transformation of the digital economy.

Legal rules are a reflection, stability and predication of real social relations. In the age of the Internet, big data technology developed rapidly, which has raised new issues for legal works and legal researches. Only an open and inclusive mentality can respond to the needs of reality; only timely and effective legislation, law enforcement and judicial activities can fill the vacuum of law; only by achieving the balance between the stability of rules and the constant changes of society can we break through the new challenges presented by traditional legal concept, means, systems, technologies, etc. From this perspective, we expect that research on data rights law can help the construction of digital China, send out Chinese voices and reflect Chinese views in the era of digital civilization, and provide a better discourse system for the development of digital civilization in the world. For the first time, this book proposes a series of new concepts and new ideas, such as the data rights, data rights system and data rights law. This is a groundbreaking theoretical exploration based on reality and the future. It is believed that they can become basic materials constructing the legal empire, a world of order and norms, in the future era of digital civilization.

Huang Jin

President and Professor of China University of Political Science and Law

August 2018 in Beijing

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Editor’s Foreword

From the day we first learn about big data, we usually regard it as a new energy, a new technology, a new mode of organization, or as a new force that is changing the future, hoping to create more value through the crossover, fusion, openness and sharing of data. However, open data and data flow often bring more risks. The excessive collection and abuse of personal information brings great challenges to the privacy of data subjects, the information security of enterprises and the stability of society and even the country, which causes widespread and deep concern regarding data sharing, privacy protection and social justice, and becomes a major problem in global data governance.

This problem causes us to think deeper and try to come up with a theoretical hypothesis of “data person” to solve this problem. We call the rights derived from the “data person” the data rights; the order constructed based on the data rights the data rights system; the legal norms formed from the data rights system the data rights law, so as to construct a legal framework of “data rights – data rights system – data rights law.” This is the focus of this book.