Abstract
Human society is entering into the era of big data and artificial intelligence. Large-scale datasets now are viewed as a critical economic resource and a clearer delineation of intellectual property rights surrounding these datasets becomes increasingly desirable.
Existing trade secret law and copyright law do provide some protection for datasets that are kept in secret or contain original contents. But those of no originality and secrecy are not protectable under those laws. To fill this gap, some Chinese courts apply the general principle of unfair competition law to prohibit competitors from copying and distributing others’ datasets that are made available to the public by its collectors.
This author examines recent important judicial cases of datasets in Mainland China, and finds that current unfair competition law protection is not satisfying enough. A special legislation that recognize a limited exclusive right in datasets should be a better institutional choice. This protection would incentivize data collectors, improve the accessibility of datasets, promote the commercialization of datasets, and reduce the overall social costs. It would not undermine the public policy goals maintained by the existing copyright law or trade secret law.
After justifying the idea of a limited exclusive right, this author further proposes key elements of the legislation, including the scope of eligible subject matters, the content of exclusive rights (right of communication to the public), the ownership of datasets, the term of protection and restrictions on the rights.
