Author

Sun Jimin, PhD Candidate, Law School, Renmin University of China

Abstract

Proposals to establish property rights in data are rooted in the individualist strand of incentive theory. This approach has developed along the trajectory of internalising external costs, addressing the governance challenges of public goods, and seeking to resolve free-rider problems, with the ultimate aim of clarifying entitlements so as to encourage active participation in the circulation, management, and exchange of data. Yet the application of incentive theory encounters significant difficulties. Its assumption of complete rationality neglects the irrational features of human behaviour, property rights are not the sole or even primary source of incentives; markets often prove ill-suited to resolving externalities; and property regimes can leave negative externalities inadequately internalised. Moreover, as a public good, data is marked by non-exclusivity and non-rivalry, with its value increasing through use. In this light, the distribution of data-related interests ought not to be accorded primary importance. Locke’s theory likewise fails to ground convincingly the legitimacy of property rights in data. What is needed, therefore, is a governance-based approach: one that differentiates data from non-public-good resources and constructs institutional frameworks emphasising openness and collaboration. By using the opportunity cost of social labour as a benchmark, the allocation of resources other than data can be restructured, enabling a more sustainable balance between resource sharing and technological innovation.

Keywords: data property rights; incentive theory; tragedy of the commons; free-rider problem; public goods; governance strategy