Research on legal confirmation of data assets
Importance of data ownership
In today’s digital economy era, data has become the core resource driving business model innovation and development. Data is related to enterprise development, scientific and technological progress and social order stability. It has even become the core competitive element of various countries. Data capitalization is the inevitable trend of data market development.
Data capitalization needs to overcome three important and challenging propositions: data asset confirmation from the legal perspective, data asset valuation and transaction from the market perspective, and data asset listing from the accounting perspective. The right confirmation of data assets is the premise of data circulation, which can fully protect the rights and interests of all participants in data circulation; Data asset valuation is the basis of data circulation, which can ensure that the data gradually tends to the fair price with the participation of the market; Data assets entry is the recognition, measurement and disclosure of data assets, which can ensure that the economic value of data is more accurately reflected in the financial statements. Among the three propositions of data capitalization, data right confirmation may be the most difficult and heated discussion. Data confirmation is the basis of data valuation. Without confirmation, it is impossible to accurately value and price, let alone enter and disclose the subsequent financial statements; Without confirmation of rights, a healthy and sustainable data trading market is also difficult to operate. Data ownership has become an indispensable prerequisite for the safe and orderly flow of data and data capitalization.
There are three basic problems to be solved in data right confirmation: one is the attribute of data right, that is, what kind of right protection is given to data; The second is the subject of data rights, that is, who should enjoy data rights; The third is the content of data rights, that is, what specific rights the data subject enjoys. The establishment and allocation of the attributes, subjects and contents of data rights need to be weighed from the multi-dimensional perspectives of individuals, society and countries.
From a personal perspective, in the context of the transformation of the Internet industry model, the use of data has changed from traditional big data analysis to precision user marketing. As the core value source for many enterprises to obtain benefits, user personal information has become one of the most valuable big data types. However, the problem of infringing personal information protection caused by the unclear definition of data ownership has become increasingly prominent. In real life, enterprises generally obtain user authorization through user service agreement, privacy agreement or personal information protection agreement. Enterprises generally agree in the agreement that they enjoy the ownership and use right of personal data, and agree that the data generated by users using personal information belongs to the enterprise. As a result, users’ personal information security will face greater uncertainty. Although the personal information protection law, which came into force on November 1, 2021, puts forward new and stricter requirements for the collection, use, transmission and storage of personal information data, the lack of relevant data rights confirmation regulations and the fact that it can only be handled through court cases lead to the problems of excessive collection of personal information and infringement of users’ rights and interests by some enterprises from time to time. Because users cannot know which personal data will be shared and which can be protected by relevant laws and regulations, some enterprises can take advantage of loopholes and arbitrarily share and utilize user information and data without the consent of users.
From the social perspective, with the rapid growth of data generation, the dimensions and types of data collected by enterprises are becoming richer and richer. However, the lack of data ownership definition makes it more convenient for enterprises to collect data excessively, and leads to data monopoly. This brings market competitive advantage to enterprises, which in turn leads other enterprises to follow suit. In the long run, the problem of data market concentration will be further exacerbated. The data competition among enterprises seriously affects the market order of digital economy and is not conducive to the long-term development of data factor market. With regard to data monopoly, we note that the draft amendment to the anti monopoly law has included the abuse of data and algorithm advantages into the scope of regulation. We expect that this amendment can alleviate and curb the chaos of data monopoly to a certain extent.
From the national level, the unclear definition of data ownership also brings inconvenience to digital governance and industry supervision. Data right confirmation is the premise of building data governance systems in the fields of government data, enterprise and social data, such as data collection standardization, data open sharing, data transaction and circulation, data security saturation and so on. The lack of data ownership regulation between government and enterprises is not convenient for the government to exercise supervision and provide public services. Completing the data ownership legislation as soon as possible will greatly improve the national security control ability of big data and strengthen the national protection of key data resources, so as to promote the development of China’s digital economy and the construction of Digital China.
Data is an important production factor and basic resource in the future society and the soul of digital economy. Data ownership is a challenge that must be faced on the road of data capitalization. A sound data property right system is the guarantee of data capitalization. Therefore, establishing a sound data property right system has become the general trend in the era of digital economy.
