Data, the most valuable commodity of our age, fuels today’s digital economy. Who owns these data and the rights associated therewith is now an inescapable question and a central concern. Under the current societal backdrop of powerful internet platforms able to wield the increasingly important economic role of data for their own advantage, current legislative frameworks have failed to keep pace with technological progress.
There is of yet no comprehensive nor global legal framework of data property rights. In the People’s Republic of China (“PRC”), as in many other jurisdictions, domestic data ownership law remains unsettled. In this uncertain legal milieu, Chinese platform companies wage intense legal battles with each other and, in rare cases, with their service suppliers over control of user data. Paradoxically, China’s digital economy has boomed without the clear specification of data ownership. How has China managed the massive growth of its data markets and inter-company data disputes without any legal determinations as to who owns data?
This Article finds that the basic rules of Chinese data markets have developed through litigation between private companies under the precepts of anti-unfair competition law, by government mediation in high-profile cases between market-making entities, and by-means-of government regulation using existing and new legal and policy frameworks, including anti-monopoly law and other data-specific government policies on antitrust and cybersecurity. In addition, the Chinese central and local governments have enacted general legislation on key data issues and are refining their policy efforts via experimental pilot projects in various locales to further develop data markets.
The case studies in this Article reveal the present condition and the limitations of a legal regime in which the reality of data monetization precedes the legal issues of “ownership,” and illustrate the efforts taken by the Chinese government thus far. However, in its analysis of the Shenzhen legislative experiment, this Article offers a cautionary perspective on those reform efforts in the absence of a new comprehensive legal framework, by spotlighting the controversy within the Chinese academic and legal communities over issues of how ownership rights granted prematurely can introduce new challenges to the emerging questions of competition, innovation, knowledge, transparency, accountability, privacy, and the broader public interest.
Incremental development and experimentation, in the form of judicial rulings by the Chinese courts and state regulatory guidance as well as legislative actions that influence the evolution of existing law based on established principles of antitrust enforcement, IP regimes, and contracts, is a promising path to allay the concerns of premature legislation on data property rights—as any new legislation that upholds the status quo could run the risk of stifling both market innovation and competition.
Published in the George Mason International Law Journal, Vol. 13, Issue 1, pp. 1-27 (2022). The paper originated in Guarini Global Law & Tech’s Global Data Law course.
