Data circulation utilization | Data transaction research review

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This article will review related issues and research on data transactions.

With the development of data technology and the increase in the scale of data -related industries in my country, data has become one of the production factors that are parallel with land, labor, capital, and technology. Data circulation is highly valued. Essence The 26th meeting of the Central Committee of the Central Committee comprehensively deepened the Reform Commission pointed out that it is necessary to establish a data property rights system, compliance and efficient data element circulation and trading system, and improve the market -oriented configuration mechanism of data factors, and promote public data, corporate data, and personal data classification and classification. Ownership of authorization, improve the compliance of the entire process of data and regulatory rules, build a standardized data trading market, and establish a system for the distribution system that reflects efficiency and promote fair data.

In recent years, domestic and foreign scholars have paid great attention to related issues such as the construction of the data property system, the development and utilization of data, the data trading, and the opening of public data. They have conducted in -depth research on related issues and put forward a variety of theory views. Therefore, when the basic system of data circulation and utilization is about to be introduced, this article wants to review the academic research results of domestic data circulation and sorting out related issues, in order to show readers a academic map in the field of data circulation.

Due to space limitations, this article will be divided into four parts: data property, data transactions, public data, and portable rights. This article will review related issues and research on data transactions.

Data transaction

The perfect data property system has laid a solid foundation for data circulation and use, and the scientific and reasonable data trading system will build high -rise buildings here to provide institutional guarantees for further excavation and data value. Although the construction of the data factor market attaches great importance to the central and local levels, and the construction of data exchanges in various places is in full swing, there are still many problems in my country's current data trading system and practical situation, which causes obstacles to the use of data circulation. Therefore, a number of scholars have discussed the problems of current data transactions, the system construction and regulation of the data factor market, and will organize and overview related research in the following research.

(1) Our data element market existing problem

The development level of the data factor market in China is still in the initial stage. Since 2014, many places in my country have successively established a number of data trading agencies to provide centralized and standardized data trading venues and services; For more than 7 years, the operation and development of these data trading institutions has not achieved the expected results. Most institutions have stopped operating or transforming their business directions, and their business scope is also very limited, and the scale of transaction is not as expected. [1] Therefore, in order to build a data trading system that is in line with my country, we need to explore the problems existing in our data element market.

First of all, although there are many data exchanges in China, at the central level, there is still no uniform data trading platform or system, which will cause problems such as uniform data trading objects and unknown data quality standards. For the main body of data transactions, there are differences in different trading platforms for whether individuals, overseas institutions, and government departments can be used as transaction entities. [2] There are also differences in whether personal data can become the object of data transactions, and for transactions The quality standards of data, such as the authenticity, legality, compliance of data, etc., are still not clear. [3] In addition, the current model of local spontaneous construction of data trading platform may also cause local interests to focus on the interests of the region when building rules, restrict the unreasonable flow of data, exacerbate local protectionism and local governments abuse administrative power to interfere with the market. risks of. [4] The lack of the data market has caused data to be blocked by cross -regional circulation across the country, causing diversification of data, difficult to fully circulate data and exert its maximum utility [5].

Secondly, my country has not established a clear and unified data property system, which has caused the definition of data ownership to blur, causing obstacles to the cultivation and development of the data factor market. [6] As described above, the academic community still controversy whether the data can become the object of the right, the ownership of the data, and the right of income should be distributed. This makes it difficult to determine the price of data assets, and [7] also makes it difficult for all parties to trades to have sufficient trust.

Furthermore, my country's lack of legislation on data transactions has led to the high cost of circulation of data factors. On the one hand, the requirements for the establishment of the data trading platform, the main body, the regulatory function, and the legal responsibility of the data trading platform are still absent, which has caused disputes in the data transaction process. [8] On the other hand, the lack of legislation has caused the potential legal risks of data transactions to be difficult to dissolve. For example, data transaction circulation may conflict with regulations such as personal information protection, data security or market order protection. Data controller shares based on fear of legal responsibility and sharing. The willingness of data may be significantly reduced. [9]

In addition, there is still no complete solution for how to fully protect personal information and privacy in data transactions. Some scholars have pointed out that some data trading institutions will make a statement for the exemption of their supervision responsibilities in advance. For data transactions that may exist in data transactions, it is difficult for data trading institutions to supervise it. [10] And due to the lack of data standards and trading systems, personal information and privacy are easily infringed in data transactions, and individuals are difficult to account for this. [11] (2) Can personal data be a transaction target?

As mentioned above, in practice, there are differences in the provisions of different trading platforms for personal data as a target of data transactions; in the research and discussion of scholars, there are different existence of the problem of this problem and what personal data can become the target of the transaction. the opinion of.

Among them, anonymous (desensitization) is considered a key system for balanced personal data protection and data transaction value. [12] Some scholars believe that because personal data is highly related to privacy, personal data entering the data trading market should be strictly processed, and the data provider needs to issue personal data security risk assessment reports before Can be traded. [13]但匿名化并非一劳永逸，随着大数据技术的发展，匿名化数据的再识别风险不断提高；因此，对于匿名化处理后的数据，应当从动态的角度对再识别风险进行评估，并Microly regulation according to the high and low risk, putting higher requirements for transaction procedures for high -risk data. [14]

It is true that the personal data after anonymous processing no longer belongs to the regulation of the Personal Information Protection Law, but the anonymousization requires that "cannot be recognized and cannot be recovered", and there is a significant defect that greatly reduces the value of data to use the value. In this regard, some scholars pointed out that the more anonymous data, the lower the value they use, so it is necessary to seek a balance point between personal data protection and data. [15] is as far as the value of data. And if all personal data is regarded as a sensitive data involving privacy and strict restrictions, then we look forward to the goals of the development interests brought by society and enterprises that will not be achieved. [16]

To this end, some scholars have proposed that they should seek balance between data reuse and personal data protection and maximize the analysis value of data within the scope of risk controlling. [17] The permission claims that for personal non -sensitive data and sensitive personal data after pseudonym, under the premise of meeting the principle of the purpose of the purpose, the data controller can determine the scope, method, and data receiver of the data transaction circulation by themselves. [18] In addition, in the scope of anonymity, it should also be eased. For example, Xu Yan proposed that the personal data should be dynamically classified. Limit trading and other types, so as to adopt systems such as anonymity, transaction permit or transaction registration for different types of data. [19]

(3) How to build a data element market?

In response to the construction of the data factor market system and the current data factors market, scholars propose their own ideas from various perspectives such as defining data ownership, clearing transaction data types, building data transaction rules, and building data exchanges. Related research will be briefly sorted and summarized.

1. Define data ownership

Clarifying the ownership of data, which is of great significance for ensuring the rights and interests of all parties in data transactions and the enthusiasm of improving data controller sharing data. There are many research and discussions on the rights of data ownership and income rights. However, at the level of data factor circulation, the most important thing is to formulate relevant norms as soon as possible, clarify the right system and ownership of the data, thereby breaking the sharing of current property rights and difficulty in pricing, and dispel the concerns of all parties in data transactions. [20] For the construction of specific systems, some scholars have pointed out that in a complex business environment, the data should be refined and confirmed, and data confirming the data from the level of data value and data rights through the laws system. [twenty one]

2. Clarify the type of transactionable data

Clarifying the type of transaction data can not only effectively prevent the risk of personal information rights and privacy caused by data transactions, but also to eliminate the concerns of all parties in data transactions to legal risks, thereby increasing the enthusiasm of data transactions. Therefore, at the standard level, whether personal data, whether government data can become the object of data transactions, and by formulating the "negative list" and other methods to clarify the data type that prohibits transactions from transactions, and make principle regulations on the type of transactionable data. [twenty two]

Among them, whether personal data can become the object of data transactions has attracted much attention. In principle, personal information should undergo strict desensitization processing and evaluate security risks before entering the data factor market. [23] For this reason, some scholars have proposed that individual data can be classified and classified. For personal data that is closely linked to personality attributes, transactions should be prohibited or restricted; and for the personal data after anonymous processing, it should be re -identified according to its re -identification. Risk and data use scenarios are classified and managed. [twenty four]

3. Build a unified data trading rule

In order to solve the problem of local differences in the current domestic data circulation trading rules, unified data trading rules need to be introduced at the national level. In addition to the data ownership rules mentioned above, the construction of data trading rules also includes three parts: data classification rules, data pricing rules, and data technology standards. First, different types of data of different types and risks need to be managed by classification; therefore, the construction of data classification rules is particularly necessary for data transactions. In this regard, Li Aijun proposed that the scientific, stability, scalability and applicability of data products should be based on the principle of classification, and the subject, industry and service types are used as the classification method. [25] For personal data, Xu Yan believes that comprehensive assessment should be conducted according to factors such as data recognition, sensitivity, and appropriateness, so as to conduct classification and regulation of personal data. [26]

Secondly, because the same data can be used for different purposes and different purposes, the data value can be uncertain, so that the information costs and transaction costs of both parties to the transaction are high. Improve the enthusiasm of all parties and the efficiency of data circulation. In this regard, Li Aijun proposed that the National Price Management Department should jointly study the basic price index system and adjust the price index system with industry associations, universities, scientific research institutions, and enterprises. [28]

Third, to reduce the cost of circulation in different enterprises and different systems, the cost of unified data technology is needed. Specifically, my country should pilot through the introduction of industry standards or national recommendation standards, and then formulate national compulsory standards to build a friendly data standard with consistent and compatible data circulation, thereby reducing the transaction cost of the data factor market; In addition, the corresponding standard certification mechanism needs to be constructed so that the corresponding standards can be implemented. [29]

4. Promote the development of data transactions with public data

In response to the current dilemma of data resources and low data quality on the data supply side of the data exchanges in various places. Come to data transactions to revitalize the data factor trading market. For example, Hu Ling advocates that the two types of data trading platforms of public and private should be integrated, and public data should be used to absorb and drive more social data. [30]

[1] China Information and Communication Research Institute: Big Data White Book, December 2021.

[2] Xiao Jianhua, Chai Fangmo: "On Data Rights and Trading Regulations", "Social Sciences of Chinese Universities", No. 1, 2019.

[3] Zhang Min, Zhu Xueyan: "Legislative Thinking of Big Data Transactions in my country", "Learning and Practice" No. 7, 2018.

[4] Chen Bing: "The Road to Rule of the Law in Fair Competition of the Data Element Market" under "Double Cycle", "Jianghai Academic Journal", No. 1, 2021.

[5] Li Aijun: "Construction of the Cultivation of the Data Factor Market", "Journal of Law", No. 9, 2021.

[6] Zhao Xin: "The Legal Difficulties and Solution Plan cultivated by the data element market in my country", "Academic Exchange", No. 3, 2022.

[7] License: "Three -Yuan Governance of Data Transaction Circulation: Technology, Standards and Laws", "Journal of Jishou University (Social Science Edition)", No. 1, 2022.

[8] Xiao Jianhua, Chai Fangmo: "On Data Rights and Trading Regulations", "Social Sciences of Chinese Universities", No. 1, 2019.

[9] License: "Three -Yuan Governance of Data Transaction Circulation: Technology, Standard and Law", "Journal of Jishou University (Social Science Edition)", No. 1, 2022.

[10] Yang Li: On the Legislation of Data Transactions "," Politics and Law ", No. 12, 2021.

[11] Guo Mingjun, An Xiaomi, Hong Xuehai: "Study on Regulating Big Data Transactions to fully release big data value", contains "Electronic Government Affairs" No. 1, 2018.

[12] Xu Yan: "Regulations on the Application of Data Transactions Except for the Structure of the System", "Electronic Government Affairs", No. 1, 2021.

[13] Zhang Min and Zhu Xueyan: "Legislative Thinking of Big Data Transactions in my country", "Learning and Practice" No. 7, 2018.

[14] Xu Yan: "Regulations on the Application of Data Transactions", "Electronic Government Affairs" 2021, No. 1.

[15] Xiao Jianhua, Chai Fangmo: "On Data Rights and Trading Regulations", "Social Sciences of Chinese Universities", No. 1, 2019.

[16] Xu Yan: "Construction of the Basic Principles of the Legal Regulations of Data Transaction: Reflection and Entry", "Library Forum", No. 2, 2021.

[17] Xiao Jianhua, Chai Fangmo: "On Data Rights and Trading Regulations", "Social Sciences of Chinese Universities", No. 1, 2019.

[18] License: "Trichous Management of Data Transaction Circulation: Technology, Standards and Laws", "Journal of Jishou University (Social Science Edition)", No. 1, 2022.

[19] Xu Yan: "Construction of the Basic Principles of the Legal Regulations of the Data Transaction: Reflection and Entry", "Library Forum", No. 2, 2021.

[20] Guo Mingjun, An Xiaomi, Hong Xuehai: "Study on Regulating Big Data Transactions to fully release big data value", contains "Electronic Government Affairs" No. 1, 2018. [21] Guo Hanwen: "Research on the Construction of the Legal Model Management of Big Data Transaction Management in Digital Economy", "China Applied Law", No. 6, 2021.

[22] Zhang Min, Zhu Xueyan: "Legislative Thoughts on my country's Big Data Transaction", "Learning and Practice" No. 7, 2018.

[23] Zhang Min, Zhu Xueyan: "Legislative Thoughts on my country's Big Data Transaction", "Learning and Practice" No. 7, 2018.

[24] Xu Yan: "Construction of the Basic Principles of the Legal Regulations of Data Transaction: Reflection and Entry", "Library Forum", No. 2, 2021.

[25] Li Aijun: "Construction of the Cultivation of the Data Factor Market", "Journal of Law", No. 9, 2021.

[26] Xu Yan: "Construction of the Basic Principles of the Legal Regulations of Data Trading: Reflection and Entry", "Library Forum", No. 2, 2021.

[27] Ding Xiaodong: "How to break the data transactions -Arao Information Paradox and Law Response in the Data Factor Market", "Oriental Law" 2022, No. 2.

[28] Li Aijun: "Construction of the Cultivation of the Data Factor Market", "Journal of Law", No. 9, 2021.

[29] License: "Trichous Management of Data Transaction Circulation: Technology, Standards and Laws", "Journal of Jishou University (Social Science Edition)", No. 1, 2022.

[30] Hu Ling: "Formation of Data Element Property Rights: From Legal Structure to Market Structure", "Oriental Law" 2022, No. 2.

Edit: Yu Tengkai

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