在数据要素市场构建中，数据权属界定、价值分配等确权问题成为主要障碍。理论界和实务界对数据确权的探索与尝试主要在“主客体二分”的框架下进行，就客体规制而言，有以传统财产权理论展开的权属认定方案，也有尝试兼顾利益分配与权益保护的方案；就主体规制而言，主要以行为为基础展开确权。但综合目前政策背景与规范发展，对所有权的摒弃与对使用权的强调已成为重要趋势。在使用权论域之下，能够发展出以数据持有者权和由此自然延伸的访问权为内容的确权方案。在这一基础之上，持有与访问规则需要再行细化。具体来看，就数据持有而言，需要以事实控制为基础、以公平效率为原则，明确各个主体如何分享数据相关权益；就数据访问而言，需要配合数据分配状态规则，明确不同级别与权限下的个性化访问规则。

In the context of rapid advancements in big data technologies, cloud computing capabilities, and artificial intelligence, data has emerged as a pivotal engine driving economic and social progress. Data, as an emergent factor of production, is categorized as an intangible asset. Unlike physical goods, it lacks tangible form and clear boundaries of holding. As data's value grows exponentially across various sectors, its intangible nature allows for instantaneous and limitless replication and distribution in the digital realm. This capability complicates the original creators' or proprietors' ability to govern the spread and application of their data.Consequently, it amplifies the challenge of establishing and maintaining clear ownership rights over data, and the issue has become a major bottleneck, hindering the full potential of data. Traditional property rights theories, while extensively studied, struggle to adequately address the unique challenges posed by data’s intangible, replicable, and easily distributable nature.
To address these complexities, this paper proposes a novel data ownership solution rooted in the concepts of holding and access rights. Drawing from both theoretical frameworks and practical considerations, the study endeavors to bridge the gap between the evolving digital economy and existing legal constructs. The abandonment of the static notion of ownership in favor of a more dynamic understanding of usufruct forms the cornerstone of this approach. By focusing on the rights of data holders and the naturally extended access rights, the paper outlines a framework that not only recognizes the multifaceted nature of data usage but also fosters efficient and equitable data circulation.
The methodology employed in this study involves a thorough examination of existing academic and theoretical explorations within China’s scholarly community, categorizing them under the “subject-object dichotomy” paradigm. On the object regulation front, it evaluates schemes rooted in traditional property rights theories alongside those aimed at balancing interest distribution and rights protection. Conversely, subject regulation focuses on behavior-based ownership recognition, drawing heavily from regulatory frameworks such as the Personal Information Protection Law, Cybersecurity Law, and Data Security Law.
Key findings highlight the inadequacy of relying solely on ownership as a means of defining data rights, given its intangible and easily replicable attributes. Instead, the paper advocates for a structured approach that prioritizes data holding rights and the accompanying access rights. The proposed solution emphasizes “factual control” as the basis for determining rights over data, ensuring that various stakeholders share these rights equitably and efficiently. The principles of fairness and efficiency guide the allocation of data rights, promoting both individual incentives and societal welfare.
Furthermore, the paper delves into the personalized rules governing data access, aligning access rights with the distribution status of data resources. Establishing data access rules involves ensuring legal and ethical compliance, protecting rights, and maintaining market fairness. Transparency in data resource allocation and access rules is crucial, guaranteeing data subjects' information rights. Rules must allow secure and private data access for subjects and necessary technical means and management measures must be taken to ensure the security and confidentiality of data during transmission, storage, and use. Security measures and risk controls are mandatory to prevent data breaches and misuse. By categorizing data based on its scarcity, importance, and innovativeness, the framework facilitates setting of varying access levels and permissions. This approach not only safeguards data privacy and security but also promotes data liquidity and efficient utilization.
The innovation of this paper lies in its departure from traditional ownership-centric frameworks and the development of a usage-based rights model tailored to the unique characteristics of data. By embracing the concepts of holding and access rights, the proposed solution aims to unlock the full potential of data as a strategic asset in the digital economy. It offers a practical and adaptive legal framework that can evolve alongside technological advancements, ensuring that data continues to drive innovation, economic growth, and societal progress.