In this digital age of information explosion, data has become a new type of asset, and can be as valuable as oil and gold. With the rapid development of big data, cloud computing and artificial intelligence technology, data collection, data processing and data analysis have become more and more important. However, as the value of data becomes increasingly prominent, data intellectual property protection is also becoming increasingly urgent. This article analyzes the current situation of data intellectual property protection in China, in order to provide ideas and suggestions for the rational use and effective protection of data.
I. Data intellectual property
In China, the first time the concept of "data intellectual property" appeared in an official document of the Chinese government was in the "Proposal on Accelerating the Construction of a Data Intellectual Property Protection System", which was put forward by the Intellectual Property Development Research Center of the China National Intellectual Property Administration (the CNIPA) in 2020.
In 2021, in The Outline for Building a Strong Intellectual Property Powerhouse (2021-2035), there appeared "Research and Construction of Data Intellectual Property Protection Rules".
In 2023, the CNIPA proposed that at this stage data processers should be the subjects of data intellectual property protection, and data sets that have been processed according to certain rules and are in an undisclosed state should be the objects of data intellectual property protection. Eight provinces or cities, including Beijing, Shanghai, Jiangsu and Zhejiang, were selected to implement data intellectual property protection pilot work.
In the same year, Beijing issued “Administrative Measures for the Registration of Data Intellectual Property in Beijing (Trial)”, which stipulated that the objects of registration of data intellectual property rights refer to the undisclosed data sets which are collected by data holders or data processors according to laws and regulations or contractual agreements and are processed via certain rules or algorithms, and have commercial value and the attributes of intellectual achievements.
In 2024, Shanghai formulated and implemented “Interim Measures for the Registration and Evidence Preservation of Intellectual Property Rights of Data Products in Shanghai”, which took effect on December 8, 2024. It stipulates that intellectual property rights of data products refer to the rights and interests enjoyed by natural persons, legal persons or unincorporated organizations over data products such as data processing collections, data processing products and data technology algorithms which have commercial value and the attributes of intellectual achievements and are formed through substantial processing and innovative labor on data resources legally obtained by them.
Zhejiang has also formulated and issued "Practical Guidelines for Data Intellectual Property in Zhejiang Province (Trial)", in which it is defined that data intellectual property is the rights and interests enjoyed by data processers over data sets that are legally obtained and processed via certain rules and have practical value and the attributes of intellectual achievements.
According to the relevant management measures for data intellectual property protection issued by various regions, we conclude that the objects of data intellectual property protection should have the following characteristics:
1. Data sets are the protectable data resources;
2. The data resources are acquired legitimately;
3. The data resources have undergone substantial processing and innovative labor according to certain rules or algorithms;
4. The processed data resources have commercial value and the attributes of intellectual achievements.
However, by now, the CNIPA has not made an official definition of "data intellectual property", and no special law is legislated to protect data intellectual property. Therefore, at present, the protection of data intellectual property rights and the infringement thereof in China mainly need to be dealt with according to the Copyright Law, the Anti-Unfair Competition Law and local regulations on data intellectual property protection.
II. Protection of data intellectual property
At present, data intellectual property protection mainly includes the following aspects:
1. Data intellectual property registration
At present, data intellectual property can be confirmed and protected by means of data intellectual property registration. The data intellectual property registration institution will record and review the ownership of the data resources and data products of the applicant and other matters. Upon approval and public announcement, the registration institution will issue the data intellectual property registration certificate to the registered entity, which serves as preliminary evidence that the registered entity legally holds the data and can exercise rights and interests over the data.
At present, there is no unified national standard for data intellectual property registration in China. The CNIPA issued the “Guidelines for Local Pilot Work of Data Intellectual Property (Trial)” and “the Notice of China National Intellectual Property Administration Office on Deepening the Local Pilot Work of Data Intellectual Property”, identified the pilot areas of data intellectual property, and put forward the objectives of improving registration quality and strengthening the protection and utilization of data intellectual property. Under the guidance of the CNIPA, various regions have issued corresponding administrative measures and regulations according to their own conditions.
While the national data intellectual property registration is gradually spreading, the legal effect of data intellectual property registration needs to be more clearly specified in legislation, policy formulation and judicial practice. In June 2024, the Beijing Intellectual Property Court concluded the second instance of a first data competition case, which involves obtaining the Data Intellectual Property Registration Certificate, and determined that the Data Intellectual Property Registration Certificate had a preliminary evidential effect in the judicial process, which is of great significance for the stable promotion of data intellectual property registration.
Datatang (Beijing) Technology Co., Ltd. (hereinafter referred to as Datatang Company), the plaintiff in the first instance and the appellee in the second instance of this case, was established in 2010, and its business scope includes data processing, artificial intelligence system services, Internet information services and technology development. In September 2021, the website of Datatang Company released “1505 hours of Chinese Mandarin phonetic data of AI data open source plan". In 2023, Datatang Company's "Database of Mandarin Voices Collected via Mobile Phones" was awarded the Data Intellectual Property Registration Certificate (J.Z.S.D.Zi No.2023000007), and the data registration number was BJSZD202300000008, and the registration term would be valid until July 6, 2026.
In 2021, Datatang Company filed a lawsuit before Beijing Internet Court, the court of first instance, asserting that Yinmu Company illegally obtained the "aidatatang200zh" data set (hereinafter referred to as the data set involved), which was a subset of the above-mentioned 1505-hour data set, and spread it to the public on its official website. At the same time, it induced users to register as its members by providing download services, which infringed Datatang Company's data property rights, copyright and trade secrets, and at the same time constituted an act of anti-unfair competition as stipulated in Article 2 of the Anti-Unfair Competition Law.
In this case, although there are differences between the rulings of the first instance and second instance courts on whether the data set involved is a trade secret, the courts of the first instance and the second instance had a consensus on the validity of the Data Intellectual Property Registration Certificate. The court of second instance, namely Beijing Intellectual Property Court, held that the Data Intellectual Property Registration Certificate involved in the case could be used as the preliminary evidence of the legality of the data set collection, and in the absence of evidence to the contrary, it can be concluded that the 200-hour data set collection involved in the case did not violate the provisions of relevant laws. The Data Intellectual Property Registration Certificate obtained by Datatang Company on the data set involved can be used as preliminary evidence to prove that Datatang Company enjoys the property interests related to the data set involved.
2. Copyright protection
For public data sets, if the selection or arrangement of their data content has an original contribution, protection through compilation under copyright law is given priority.
Article 15 of the Copyright Law stipulates: “A work created by compilation of several works, fragments of works or of data or other materials which do not constitute a work is a compilation when the selection or arrangement of the contents thereof reflect the originality. The copyright in such compilation shall be enjoyed by the compiler, provided that the exercise of such copyright does not infringe upon the copyright in the original works”.
Example Case 1: Copyright ownership and infringement disputes between Foshan Dingrong Software Technology Co., Ltd. and Jinan Baitu Information Co., Ltd (hereinafter called “Baitu Company”) (Case No.: (2016) Yue 06 Minzhong No.9055)
The court of the second instance held that Baitu Company extracted, classified and sorted out the contents of trademark information in the trademark announcement of the China Trademark Office, further extracted and sorted out the characters and numbers contained in the trademark marks, and meantime summarized the subsequent changes of trademark information and added user-defined field information, etc. The organization and arrangement of trademark data by Baitu Company reflects originality. Baitu Company’s database involved in the case constitutes a compilation, which can be protected under the Copyright Law, and Baitu Company enjoys copyright over the database involved.
Example Case 2: Dispute between Shanghai Metz Pharmaceutical Technology Co., Ltd. and Kerui Weian Information Service (Beijing) Co., Ltd. over infringement of the right to disseminate works information on the Internet and unfair competition (Case No.: (2020) Hu 73 Min Zhong No.531)
The court of second instance held that the JCR journal citation report database is a collection of JCR journal citation reports, which does not accept all journals unconditionally, but selects the journals with the most academic value to form reports for inclusion into the database after investigation and analysis. This personalized selection of journals embodies the intellectual creation of the producers and is original. As an important part of JCR journal citation report database, the collection of IF impact factor data also reflects the originality of JCR journal citation report database in the selection of journals and should be protected by copyright law.
3. Protection as trade secrets
Data that do not constitute copyrightable works but are in a secret state could be protected as trade secrets.
Article 9 of the Anti-Unfair Competition Law stipulates: “A business operator shall not engage in any of the following infringements on trade secrets:
(1). obtaining a right holder's trade secrets by theft, bribery, fraud, intimidation, hacking or other improper means;
(2). disclosing, using, or allowing others to use a right holder's trade secrets obtained by the means mentioned in the preceding paragraph; or
(3). disclosing, using or allowing others to use a right holder's trade secrets in violation of the confidentiality obligations or the right holder's requirements on keeping such trade secrets confidential.
(4). instigating, inducing, and helping others to violate confidentiality obligations or to violate the right holder’s requirements on keeping the confidentiality of trade secrets to acquire, disclose, use or allow others to use the right holder’s secrets.
Natural persons, legal persons and unincorporated organizations other than a business operator committing the illegal acts listed in the preceding paragraphs shall be deemed to have infringed on trade secrets.
Where a third party knows or should know of the fact that an employee or former employee of the right holder of trade secrets or any other entity or individual conducts any of the illegal acts specified in the paragraph 1 of this Article, but still acquires, discloses, uses or allows any other to use such trade secrets, such practice shall be deemed as infringement on trade secrets.
For the purpose of this Law, “trade secrets” refer to any commercial information such as technical information and operational information which is not known to the public and has commercial value, and for which the holder has adopted measures to ensure its confidentiality.”
Example Case 3: Dispute between Dalian Beitong Data Platform Management Center (hereinafter called “Beitong Data”) and Cui Hengji over infringement of technical secrets (Case No.: (2021) Zui Goa Fa Zhi Min Zhong No.1687)
The Supreme People’s Court held that Cui Hengji, as the person in charge of the crawler platform project, legally obtained the technical information of the crawler platform project during his tenure at Beitong Data, but when he joined and left the company, Beitong Data clearly clarified with him on confidentiality obligations, requiring him not to disclose the company's trade secrets, and not to take away the copywriting and templates completed during his tenure when leaving the company, and all documents that need to be taken away must be recorded with Beitong Data and approved by Beitong Data. Although Cui Hengji knew the above confidentiality provisions, he still violated the relevant confidentiality requirements and confidentiality management regulations of Beitong Data. Without Beitong Data's knowledge, he sent the files containing the technical information involved to a private mailbox by e-mail, which caused the technical information involved to be out of the original control of Beitong Data, and thus there was a risk that the technical information involved might be disclosed and used. This behavior constituted an act of obtaining other's trade secrets by theft. Although Cui Hengji is not an operator stipulated in paragraph 1 of Article 9 of the Anti-Unfair Competition Law, according to paragraph 2 of Article 9 of that Law, Cui Hengji's behavior should be regarded as an act of stealing the right holder’s trade secrets stipulated in paragraph 1(1) of Article 9.
4. Protection under Anti-Unfair Competition Law
There is no specific property protection system for the data that is not in a secret state (i.e. is in a public state) and also does not constitute a copyrightable work. But in judicial practice, the court usually restricts the use of data that violates business ethics according to Article 2 of the Anti-Unfair Competition Law.
Article 2 of the Anti-Unfair Competition Law stipulates: “While carrying out production or business activities, a business operator shall follow the principles of voluntariness, equality, fairness, and good faith, abide by laws and observe business ethics.
For the purpose of this Law, unfair competition refers to any business operator's act of participating in the production and operation activities in violation of the provisions herein to disrupt the competition order in the market and infringe the legitimate rights and interests of other business operators or consumers.
For the purpose of this Law, a business operator refers to a natural or legal person or any other unincorporated association engaged in the manufacturing or trading of commodities or the provision of services ("commodities" referred to hereinafter include services).”
In the unfair competition dispute between Yinmu Company and Datatang Company mentioned above in this article, protection was sought through Article 2 of the Anti-Unfair Competition Law.
Example Case 4: Dispute over unfair competition between Yinmu (Shanghai) Technology Co., Ltd. and Datatang (Beijing) Technology Co., Ltd. (Case No.: (2024) Jing 73 Min Zhong No.546)
In the judgment of this case, the way of judicial protection of data sets is clarified: for the protection of a data set, if it is in the public state and has an original contribution to the selection and arrangement of data content, protection through compilation under copyright law is given priority. On the other hand, if the data set is not easily obtained by people in related fields, trade secret protection can be applied. If the data set is open and the selection or arrangement of data content is not original, due to the lack of basis for intellectual property rights and trade secret protection, it can be regulated according to Article 2 of the Anti-Unfair Competition Law as appropriate.
In this case, although the data set involved does not meet the constitutive requirements of copyrightable compilation works or trade secrets, Datatang Company has invested a lot of technology, capital and labor in this data set, and legally collected and formed a substantial quantity of voice data items, which adds more commercial value to the data set involved based on the original data, and can meet the needs of the research and development entities of artificial intelligence models for voice data, thereby bringing commercial benefits such as traffic, trading opportunities and competitive advantages to Datatang Company. This commercial interest is essentially a competitive interest and should be protected under the anti-unfair competition law.
5. Technical measures and contractual agreements
Enterprises themselves can also use auxiliary technical measures (such as restricting web crawlers) or contractual agreements to protect enterprise data.
III. Outlook
With the acceleration of digital transformation and the digital development of the global economy, data intellectual property protection is becoming the key to innovation-driven development. In the next few years, we are expected to witness significant progress and changes in the field of data intellectual property protection. With the continuous improvement of policies and the deepening of international cooperation, the mechanism of data intellectual property protection will be more perfect, providing a solid legal basis for the innovative utilization and safe circulation of data. The progress of technology, especially the development of blockchain, artificial intelligence and encryption technology, will provide new solutions for data intellectual property protection and enhance data security and transparency. At the same time, with the improvement of data privacy awareness and the strengthening of compliance requirements, enterprises and individuals will pay more attention to the legal and compliant use of data and promote the practice of data intellectual property protection to mature.
On a global scale, the cooperation and competition in data intellectual property protection will be further intensified, and countries will seek to maintain the freedom and fairness of global data flow while protecting their own data assets. This will not only promote the construction of a global data governance system, but also inject new vitality into the sustainable development of the global economy. Looking forward to the future, data intellectual property protection is not only a legal and technical issue, but also a major issue related to global governance, economic development and human welfare. With the deepening global awareness of the importance of data intellectual property protection, we have reason to believe that a more just, transparent and secure era of data intellectual property protection is coming.
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