连带责任、数据交易与信息权益保护

Joint Liability,Data Transaction and Information Rights Protection

本文讨论连带责任对数据市场效率和信息权益保护的影响。上游数据企业将数据授权给下游服务企业,用于向最终客户提供基于数据的服务。数据中包括敏感信息,因而存在侵犯信息权益的可能,而连带责任意味着上游企业需要为下游企业的侵权行为承担部分甚至全部责任。分析表明,给定合理的处罚力度,连带责任使下游企业有更强的动机滥用数据,同时降低上游企业提供数据的意愿,可能导致对社会有利的数据交易被放弃。如果上游数据企业存在有限的责任承担能力,那么下游服务企业滥用数据的动机减弱,有助于提升市场效率。而如果下游服务企业存在有限的责任承担能力,那么其滥用数据的动机进一步加强,这也促使上游企业更加谨慎地选择交易伙伴。本文还通过Hotelling模型分析当下游服务市场存在竞争时,连带责任对市场效率的影响。与垄断情形类似,这时连带责任仍然会加强下游企业滥用数据的动机、降低数据市场效率。在寡头竞争中,连带责任不会显著影响下游企业的利润。

Although China’s data output ranks among the top in the world and market players have a great demand for data,the data market is small in size and has a much lower level of development than other major economies in the world.Many industry surveys have shown that market players,especially suppliers,still have many concerns about data transactions.How to further activate the transaction of data products and services and unleash the value of data elements is an important issue facing the development of China’s digital economy and even the overall economy.An important feature of China’s data market regulation and supervision is the emphasis on“joint liability”.Upstream data enterprises license data to downstream service enterprises for the provision of data-based services to end customers.The data contain sensitive information,so there is a possibility of infringement of information rights.Joint liability means that upstream enterprises need to bear partial or even full responsibility for downstream enterprises’infringement behavior.Joint liability can urge data enterprises to carefully choose their partners,encourage upstream and downstream enterprises to monitor each other to prevent illegal data-related behaviors,and facilitate accountability for the cooperative action by upstream and downstream enterprises to maliciously collect and use data.In addition,joint liability also implies externalities in individual behavior,which may lead to incentive distortions.This paper uses a concise economic model to theoretically analyze the impact of the joint liability rule on the data market efficiency under various market conditions.We find that assuming that regulators impose a reasonable level of punishment for data infringement,joint liability actually encourages downstream service enterprises to abuse data,while reducing the motivation of upstream data enterprises to provide data.Both effects tend to lower the efficiency of the data market.This efficiency loss is difficult to solve by increasing the severity of punishment.Although severe punishment is beneficial to protecting information rights and interests,it will further reduce the motivation of upstream data enterprises to provide data,which is still not conducive to the healthy development of the data industry.The basic conclusion of this paper is robust under some common market conditions.For example,regulatory punishment may bring indirect losses to enterprises,downstream service enterprises may have certain price negotiation capabilities,or upstream data enterprises may delete sensitive information in the data.A common phenomenon is that some enterprises have limited capacity to undertake liability.Our model can easily analyze such a situation.If upstream data enterprises have limited capacity,then under the joint liability rule,downstream service enterprises will undertake greater infringement liability,so their abuse of data is suppressed,which helps to improve market efficiency.If downstream service enterprises have limited capacity,then greater infringement liability will be transferred to upstream enterprises.Therefore the motivation of downstream enterprises to abuse data will be further strengthened,and even extreme abuse may occur.However,anticipating such a situation,upstream data enterprises may choose their transaction partners more carefully and avoid collaborating with downstream enterprises with limited capacity.We use a Hotelling model to describe the competition between two differentiated downstream service enterprises.Model analysis shows that,when there is competition in downstream markets,service enterprises still try to maximize the maximum net value they create from data,and joint liability can still lead to data abuse.As a result,the impact of joint liability on how enterprises use data remains largely unchanged.We also discuss some practical examples of how joint liability affects the data market efficiency.Our policy recommendations include requiring upstream data enterprises to provide guarantees,instead of undertaking joint liability,for data infringement by downstream service enterprises,strengthening the security management of data products and the identification of infringement liability,providing qualification management for downstream service enterprises,accelerating the opening and sharing of public data through liability exemption mechanisms to establish confidence in the data market,and establishing a“white list”of pilot projects.