关键词: 数据权利, 生产要素, 权利理论, 程序规范, 技术标准

Abstract:

It is imperative to construct a theoretical foundation and regulatory framework for data rights that meets the developmental requirements of the data factor market. According to domestic and international literature, the knowledge graph of data rights reveals a trend of integration between data governance technologies and rights regulations. The essence of the“relational theory”of data rights is more suited to the incentivizing and cooperative traits of the data element market. Given that relational rights are inherently self- generative and the content of rights is necessarily held within the factual relationships of the subjects involved, it is essential to consider the actual state of control over data, avoid the“law of the jungle”where controllers always gain benefits, and open up part of the rights content to the market through a decentralized allocation entity system model. This approach aims to achieve the“anchoring effect”of facilitating data element circulation through institutional regulation. Still more importantly, a systematic procedural framework is needed to reserve space for the self-recognized rights content of the market and address issues of“residual control  rights”that entity allocation systems may not reach. Among other things, it is essential to form a self-recognition rights mechanism for the data element market through procedural elements such as the negotiation of rights subjects, reference to data elements, realization of data rights value, impact of data rights risks, and the soft law norms of technical standards, so as to foster a sound regulatory ecosystem for the circulation of data elements.

Key words: data rights, factors of production, rights theory, legal procedure, standard