I. Realizing the nature of data and its formality in legal system
In the amendment of civil law in China, the concept of so called “data information” is doubtful and the draft itself has not given out a clear definition for it yet. Since each kind of the subjects of intellectual property rights could be regarded as a certain kind of “information” and data itself is certainly a kind of “information”, the word “information” – in the conception of “data information” – seems to be redundant.
Moreover, this concept will mislead the understanding of the nature of data. Then the question is how we can realize data in a systematic way and Semiotics may be effective in exploring the nature of data. Based on this theory, the concept of “data information” may not be a proper new subject matter of IP rights.
II. Understanding the benefits and problems of granting exclusive right to non-personal data
Data without further classification may not be possible to be protected by law, not to mention being treated as a property right. There already exists a rough classification of data, i.e. personal data and non-personal data.
Regarding granting a new IP right to non-personal data, it may have both benefits and problems. However, the benefits are uncertain and granting exclusive rights to industrial right may encounter with some problems. These problems often include allocation, specification and access problems.
III. Concluding the system constructed by IP law and unfair competition law for newly emerged subject
Finding a basic methodology to deal with newly emerged subject matter is very important for developing countries like China.
There are four main types of protection for subject matter related to the development of digital technology, which are intellectual property, unfair competition, contracts and technological protection measures (TPMs).
There are several ways for protecting investment in intangible object from legal perspective and they can be divided into different levels of density according to professor Hilty’s theory. From weak to strong, they are protection based on open-ended norms such as general clauses; sui generis rights; trade mark rights, industrial designs, and geographical indications; and lastly patents and copyright. Based on this model, professor Kur suggests new type of protection should start from small use unfair competition law as an “incubator” for new types of rights and gradually enhance the protection towards exclusive right if it is necessary. Realization of these theories will benefit the non-personal data legislation in China a lot.
