Among the “three data rights,” the data utilization right has been persistently overlooked, and is similar to a neglected “middle child” in the context of the data rights family. However, it is precisely during th...Among the “three data rights,” the data utilization right has been persistently overlooked, and is similar to a neglected “middle child” in the context of the data rights family. However, it is precisely during the stages of processing and utilization that data undergoes its transformations and where its economic value is ultimately created. A series of recent policy documents on treating data as a factor of production have emphasized that the building of a scientific data property rights system requires a fair and efficient mechanism for benefit distribution, which provides reasonable preference for creators of data value and use value in terms of the income generated by data elements. Constrained by the inertial thinking of property right logic, the data utilization right is often regarded as a “transitional fulcrum” wherein the holders of data resources have to authorize the operators of data products to realize data value thereby. In the future structural design and implementation of the coordination mechanism for the property right system against the backdrop of the data factor-oriented reform, the establishment of data processing and utilization as an independent right will require the implementation of two core initiatives: first, attaching importance to the independent protection of the benefit distribution;second, implementing risk regulation for data security through optimization of governance. These two initiatives will serve as the key for optimizing the data factor governance system and accelerating the release of data value.展开更多
Although the existing legal norms and judicial practic-es can provide basic guidance for the right to personal data portabili-ty, it can be concluded that there are obstacles to the realization of this right through e...Although the existing legal norms and judicial practic-es can provide basic guidance for the right to personal data portabili-ty, it can be concluded that there are obstacles to the realization of this right through empirical research of the privacy policies of 66 mobile apps, such as whether they have stipulations on the right to personal data portability, whether they are able to derive copies of personal in-formation automatically, whether there are textual examples, whether ID verification is required, whether the copied documents are encrypt-ed, and whether the scope of personal information involved is consis-tent. This gap in practice, on the one hand, reflects the misunderstand-ing of the right to personal data portability, and on the other hand, is a result of the negative externalities, practical costs and technical lim-itations of the right to personal data portability. Based on rethinking the right to data portability, we can somehow solve practical problems concerning the right to personal data portability through multiple measures such as promoting the fulfillment of this right by legislation, optimizing technology-oriented operations, refining response process mechanisms, and enhancing system interoperability.展开更多
In the digital era,the free cross-border flow of data and the development of digital trade are complementary.Consequently,as an inherent demand for data privacy,trade liberalization is closely linked to the right to d...In the digital era,the free cross-border flow of data and the development of digital trade are complementary.Consequently,as an inherent demand for data privacy,trade liberalization is closely linked to the right to data privacy,and data privacy protection is increasingly becoming a trade issue.However,conflicting rule settings between the two create discrepancies and result in differing rule-making approaches.The concept of the right to data privacy provides guidance and evaluative functions for the development of trade liberalization,facilitating the healthy development of digital trade.It is appropriate to treat the interaction between trade liberalization and data privacy protection in a rational way and to place them within independent systems at this stage.Data localization measures are an effective way to balance digital trade liberalization with the right to data privacy.As a data privacy protection measure,data localization has legitimacy within the trade law framework.Looking ahead,to achieve a harmonious advancement of digital trade liberalization and protection of the right to data privacy,all parties should uphold the premise of the national regulatory autonomy,and respect the data localization measures adopted by countries based on their own national conditions and personal data protection considerations.展开更多
The right to the protection of personal data is an important human right in the era of big data and a constitutional right based on the national protection obligation and the theory of human dignity,making it of speci...The right to the protection of personal data is an important human right in the era of big data and a constitutional right based on the national protection obligation and the theory of human dignity,making it of special significance for the realization of citizenship in a digital society.It can be seen from an examination of the constitutional texts of various countries in the world that the right to the protection of personal data as a constitutional right has rich normative connotations,and the key legal link to realize this right lies in the national legislature actively fulfilling its obligation to shape and specify the protection of personal data in accordance with the entrustment of the constitutional norms.Given the constitutional principles of fundamental rights protection,i.e.,realizing the constitutional status of the right to the protection of personal data as a basic right by means of institutional guarantees,the legislature should first adhere to the constitutionality principle of data protection legislation.Second,a multi-level data protection legal system centered on the right to the protection of personal data should be established.Finally,the institutional guarantee mechanism for the protection of personal data should be continuously improved through constitutional interpretation.展开更多
文摘Among the “three data rights,” the data utilization right has been persistently overlooked, and is similar to a neglected “middle child” in the context of the data rights family. However, it is precisely during the stages of processing and utilization that data undergoes its transformations and where its economic value is ultimately created. A series of recent policy documents on treating data as a factor of production have emphasized that the building of a scientific data property rights system requires a fair and efficient mechanism for benefit distribution, which provides reasonable preference for creators of data value and use value in terms of the income generated by data elements. Constrained by the inertial thinking of property right logic, the data utilization right is often regarded as a “transitional fulcrum” wherein the holders of data resources have to authorize the operators of data products to realize data value thereby. In the future structural design and implementation of the coordination mechanism for the property right system against the backdrop of the data factor-oriented reform, the establishment of data processing and utilization as an independent right will require the implementation of two core initiatives: first, attaching importance to the independent protection of the benefit distribution;second, implementing risk regulation for data security through optimization of governance. These two initiatives will serve as the key for optimizing the data factor governance system and accelerating the release of data value.
基金the current result of the “research on the basic category system of contemporary Chinese digital law” (23&ZD154), a major project of the National Social Science Fund of China.
文摘Although the existing legal norms and judicial practic-es can provide basic guidance for the right to personal data portabili-ty, it can be concluded that there are obstacles to the realization of this right through empirical research of the privacy policies of 66 mobile apps, such as whether they have stipulations on the right to personal data portability, whether they are able to derive copies of personal in-formation automatically, whether there are textual examples, whether ID verification is required, whether the copied documents are encrypt-ed, and whether the scope of personal information involved is consis-tent. This gap in practice, on the one hand, reflects the misunderstand-ing of the right to personal data portability, and on the other hand, is a result of the negative externalities, practical costs and technical lim-itations of the right to personal data portability. Based on rethinking the right to data portability, we can somehow solve practical problems concerning the right to personal data portability through multiple measures such as promoting the fulfillment of this right by legislation, optimizing technology-oriented operations, refining response process mechanisms, and enhancing system interoperability.
基金the phased outcome of the project“Research on China’s Rule of Law Path for Maintaining the Security and Stability of Global Supply Chain”(Approval Number 2024M751358)that received funding from the 75th general grant of the China Postdoctoral Science Foundation.
文摘In the digital era,the free cross-border flow of data and the development of digital trade are complementary.Consequently,as an inherent demand for data privacy,trade liberalization is closely linked to the right to data privacy,and data privacy protection is increasingly becoming a trade issue.However,conflicting rule settings between the two create discrepancies and result in differing rule-making approaches.The concept of the right to data privacy provides guidance and evaluative functions for the development of trade liberalization,facilitating the healthy development of digital trade.It is appropriate to treat the interaction between trade liberalization and data privacy protection in a rational way and to place them within independent systems at this stage.Data localization measures are an effective way to balance digital trade liberalization with the right to data privacy.As a data privacy protection measure,data localization has legitimacy within the trade law framework.Looking ahead,to achieve a harmonious advancement of digital trade liberalization and protection of the right to data privacy,all parties should uphold the premise of the national regulatory autonomy,and respect the data localization measures adopted by countries based on their own national conditions and personal data protection considerations.
基金the provincial key academic project Research of the Grassroots Negotiation and Governance Modernization Viewing from the Angle of State Governance(2019-GDXK-0005)
文摘The right to the protection of personal data is an important human right in the era of big data and a constitutional right based on the national protection obligation and the theory of human dignity,making it of special significance for the realization of citizenship in a digital society.It can be seen from an examination of the constitutional texts of various countries in the world that the right to the protection of personal data as a constitutional right has rich normative connotations,and the key legal link to realize this right lies in the national legislature actively fulfilling its obligation to shape and specify the protection of personal data in accordance with the entrustment of the constitutional norms.Given the constitutional principles of fundamental rights protection,i.e.,realizing the constitutional status of the right to the protection of personal data as a basic right by means of institutional guarantees,the legislature should first adhere to the constitutionality principle of data protection legislation.Second,a multi-level data protection legal system centered on the right to the protection of personal data should be established.Finally,the institutional guarantee mechanism for the protection of personal data should be continuously improved through constitutional interpretation.
