数据权的权利性质及其归属研究

Study on the Nature and Ownership of Data Right

按照数据的两种分类,除公共数据以外的原始数据权都兼具人格权和财产权,属于数据生产者。次生数据只具有财产权性质,属于数据加工者。原始数据和次生数据如具有"独创性"采用版权法保护,否则可给予邻接权保护。企业采用保密措施的数据可按商业秘密对待。其余不能纳入以上保护的数据都可视作财产权客体。脱敏后仍能确定某人的个人数据属于商家,但收集需经个人数据权利人同意,利用需进行利益惠益分享。公共数据具有财产权性质,属于所有公民。国家数据之上的权利属于国家。

All the original data which has nature of personality right and property right belongs to producers except the public data.Secondary data which only has the nature of property belongs to processors.These original and secondary data which complies with standard of protection of the Copyright Law could be protected.Holders who have databases which have unoriginality could be protected by neighboring rights.Enterprises which take confidentiality measures for their data could be treated in accordance with trade secret rights.Others could be considered as objects of properties.Data which still could be determined as personal ownership after data masking belongs to enterprises,but the utility of profit after data masking need to be shared fairly.Public data is part of public resource which has nature of property rights belonging to citizens.The rights of state data belong to state.