Author:Wang Saifei, Postdoctoral Research Fellow,Assistant Researcher,Law School, Jilin University.

Abstract:Existing research on the legal construction of proprietary interests in data has primarily focused on a comparison between the ‘property rights approach’ and the ‘conduct regulation approach’, which has some limitations. This article undertakes a systematic analysis based on the dichotomy between standards and rules, while also introducing a complexity dimension. It thus systematizes potential legal constructions into four categories: simple standards, complex standards, simple rules and complex rules. Different legal construction exhibits distinct advantages and disadvantages across various dimensions. A ‘cost-benefit’ analysis provides a relatively objective perspective for comparing the four constructions in terms of legislative costs, judicial costs, compliance costs, benefits in terms of consistency and inclusiveness of legal values, thereby offering a basis for constructing the legal framework of proprietary interests in data. Existing legislative practice tends to oscillate between simple standards and complex rules, overlooking the possibilities offered by other legal constructions. The article argues that the optimal legal construction of proprietary interests in data should strike a balance between legal certainty and flexibility. It further proposes that there are at least two pathways for improving the legal construction of proprietary interests in data: one involves the development from simple standards to complex standards to enhance legal certainty and the other involves embedding standards within complex rules to increase legal flexibility.

Keywords:proprietary interests in data;rules and standards;element judgment; legislative costs;inclusiveness of legal values