Regulating the use of big data: Justifications, perspectives and the Chinese way forward

Abstract

Big Data is the collection of data that is non-rivalrous in consumption. Since Big Data is not physically tangible like movable or immovable property and is not subject to restrictive clauses in property law such as the “idea-expression dichotomy” and “fair use and term of protection”, it is fundamentally inappropriate to regard Big Data as an object of real rights. The protection of Big Data requires a paradigm shift from a rights-based “empowerment” approach to that of “behavioural regulation”. Accordingly, the protection of Big Data should not be seen as pitting the approaches of “empowerment” against “behavioural regulation”; rather, it should be seen as achieving coordination between behavioural regulation laws. To effectively balance the interests of data enterprises and the public, this article argues that a competition-based behavioural regulation regime that prohibits unfair competition between data enterprises is more desirable than an intellectual property “rights” regime that protects enterprises’ big data through exclusive rights.