Understanding Data Intellectual Property in China: Implementation Before Conceptualisation Through Regulatory Experiment
摘要
China has recently started registering data intellectual property through eight pilots, even before the protected subject matter “data intellectual property” is defined by legislation. This article explains the Chinese approach to regulating data intellectual property through the lens of regulatory experiment. Recognising data as a strategic resource, the Chinese National Intellectual Property Administration (CNIPA) has been motivated to regulate data as a new type of intellectual property. However, there remains a lack of consensus on how data may relate to intellectual property and how it should be regulated. This article argues that, given the urgency to regulate and this lack of consensus, the regulatory experiment approach adopted by CNIPA is a pragmatic choice likely to significantly influence future regulation of data and intellectual property in China. Analysing the practices of the regulatory pilots and their interaction with CNIPA, this article further argues that the Chinese data intellectual property regulatory experiment follows a logic of “implementation before conceptualisation”. While the current regulatory experiment has been pragmatically initiated and implemented and may not directly provide insight into the conceptualisation of data intellectual property for the time being, the regulatory experiment may eventually lead to normative change – conceptualisation through legalisation.