Table Of Content
- This eBook can be cited
- List of Figures
- List of Tables
- Editor’s Foreword
- Chapter 1 The Significance of Data Rights to Mankind’s Common Life
- Chapter 2 Human Rights, Real Rights and Data Rights
- Chapter 3 The Concept of Data Rights
- Chapter 4 The Data Rights System
- Chapter 5 Data Rights Law and the New Order of Digital Civilization
Figure 1. Three Ways of Data Remixing.
Figure 2. Gradient Leap Model of Information Internet, Value Internet and Order Internet.
Figure 3. The Relations of Data Rights.
Figure 4. The Data Rights Law and Other Forces of Social Control.
Table 1. Sketch of the Three Generations of Human Rights.
Table 2. Some Human Rights Protection Mechanisms.
Table 3. Evolution of Production Mode and Dominant Resources.
Table 4. Characteristics of Data Rights.
Table 5. Differences between Human Rights, Real Rights and Data Rights.
Table 6. Theories of Data Rights.
The digital economy is on the rise globally. To promote opening and sharing with the development of the digital economy, countries around the world are working together to build a destiny community of cyberspace. In December 2015, President Xi Jinping delivered a keynote speech at the opening ceremony of the Second World Internet Conference emphasizing that the Internet is the common home of mankind. Countries should jointly build a destiny community of cyberspace to promote the interconnection and sharing of cyberspace, and create a better future for human development. In December 2017, Xi Jinping once again emphasized in his congratulatory letter to the 4th World Internet Conference that he respects cyber sovereignty, wishes to carry forward the spirit of partnership, and calls for jointly taking the Internet and digital economy express. On May 26 of this year, 2018 China International Big Data Industry Expo opened in Guiyang, Guizhou Province. President Xi Jinping further pointed out in the congratulatory letter to the meeting that the new generation of information technology represented by the Internet, big data and artificial intelligence is changing with each passing day, which has a major and far-reaching impact on economic and social development, state management, social governance, and people’s lives in all countries. Grasping the important opportunities of the development of big data, promoting the healthy development of the big data industry, and handling the challenges of data security and cyberspace governance require countries to strengthen mutual exchanges and deepen communications and cooperation.
Since the 18th National Congress of the Communist Party of China, with socialism with Chinese characteristics entering a new era, China’s big data development has also entered a new era. General Secretary Xi Jinping personally served as the leader of the Central Cyber Security and Informatization Leading Group and put forward the strategic goal of striving to build China into a network power, and promoted with the Two Centenary Goals. On October 9, 2016, when the Political Bureau of the CPC Central Committee conducted the thirty-sixth collective study on ← xxi | xxii → the implementation of the strategy of strengthening the country by the network, General Secretary Xi Jinping further proposed six requirements of acceleration, including “accelerating the promotion of China’s international talking right and the right to formulate rules for cyberspace.” This sets a new direction for the construction of rule of law in China, and puts forward new expectations for the study of legal theory in China. We must conscientiously study and understand the profound connotation of Xi Jinping’s Internet rule of law, and actively carry out the attentions and researches on the frontier issues of law including data rights, data security and data sovereignty, and give full play to the functions of law such as promotion, regulation, guidance, and protection, and carry out widespread theoretical researches and legislative explorations in the fields of big data, Internet, etc., and actively carry out relevant plans of legislative, arrangements of legislative project and design of legal principles, value balance, systems and mechanisms of law enforcement in the field of Internet, and participate in the formulation of international rules, and use the Internet rule of law to better support the national cyber development strategy.
In May of this year, the European Union promulgated the “General Data Protection Regulations” with obvious oaths, which becomes the leader of the global digital economic order. In fact, since the 1980s, European and American countries have spared no effort to promote respective policies of personal data protection globally, and have begun to influence and export rules of data protection. This shows that in the era of digital economy, whoever first achieves effective governance of data has the initiative and voice of information globalization. Based on forward-thinking of the development of new technologies, EU legislators set new rules on the basis of higher civilizations. This is also a kind of push. We must clarify the key points and main tasks of the construction of rule of law in cyberspace as soon as possible, and improve the comprehensiveness and systematicness of the rule of law of the Internet, and form a dominant international power of data rights regulation in the construction of system for the perfection of data rights law.
The biggest international political change in the early twenty-first century was the continued rise of China. For a country, the real rise is to provide a civilization for the world. The reform and opening up has enabled China’s comprehensive strength to rapidly increase, gradually established China as a great power in the international community. It let China establish an ← xxii | xxiii → image of great power and get closer and closer and walk up the center of the world stage. At the same time, however, China, as a responsible power, has not played its role in the formulation of international law for a long time. At present, China is adjusting its posture and image, changing from the participant of the international order to the role of constructive leaders in the system. Strengthening the legislation of the digital economy has great significance on the building and perfecting of a data governance system that is in line with China’s national conditions and a new kinetic framework that promotes innovation and development. In this regard, we have a consensus that if China’s laws are going to be introduced to the world, the law of the digital economy is the most likely law. We shall rely on the concept of the development of great powers and solve the future problems with Chinese wisdom, especially focusing on the new civilization form of digital civilization, and looking for the path of value and order reconstruction in the profound transformation of the digital economy.
Legal rules are a reflection, stability and predication of real social relations. In the age of the Internet, big data technology developed rapidly, which has raised new issues for legal works and legal researches. Only an open and inclusive mentality can respond to the needs of reality; only timely and effective legislation, law enforcement and judicial activities can fill the vacuum of law; only by achieving the balance between the stability of rules and the constant changes of society can we break through the new challenges presented by traditional legal concept, means, systems, technologies, etc. From this perspective, we expect that research on data rights law can help the construction of digital China, send out Chinese voices and reflect Chinese views in the era of digital civilization, and provide a better discourse system for the development of digital civilization in the world. For the first time, this book proposes a series of new concepts and new ideas, such as the data rights, data rights system and data rights law. This is a groundbreaking theoretical exploration based on reality and the future. It is believed that they can become basic materials constructing the legal empire, a world of order and norms, in the future era of digital civilization.
President and Professor of China University of Political Science and Law
August 2018 in Beijing
From the day we first learn about big data, we usually regard it as a new energy, a new technology, a new mode of organization, or as a new force that is changing the future, hoping to create more value through the crossover, fusion, openness and sharing of data. However, open data and data flow often bring more risks. The excessive collection and abuse of personal information brings great challenges to the privacy of data subjects, the information security of enterprises and the stability of society and even the country, which causes widespread and deep concern regarding data sharing, privacy protection and social justice, and becomes a major problem in global data governance.
This problem causes us to think deeper and try to come up with a theoretical hypothesis of “data person” to solve this problem. We call the rights derived from the “data person” the data rights; the order constructed based on the data rights the data rights system; the legal norms formed from the data rights system the data rights law, so as to construct a legal framework of “data rights – data rights system – data rights law.” This is the focus of this book.
If regarding the data as a kind of right, based on which a new order and a new law are constructed, then this kind of construction will give more brand-new and profound meanings to the future life of mankind. Human rights, property rights and data rights are three basic rights of the future life of mankind. Proving “Mine and Thine” by law is the primary issue of the relationship of rights. This involves the data rights and human rights, among others. After hundreds of years of development, human society is entering the era of big data, data person will turn from hypothesis into reality, and data relationships are reflected in all aspects such as personal life, business operation and national security. A new thing that is different from traditional things and transcends traditional people begins to enter the vision of legal relations, which is the “data.” Data is generated by the times, in turn, the times are created by data. It jumps out of the traditional relationships of legal rights and obligations, reflecting a characteristic of crossover and fusion. It is no longer the traditional “Right as against every possessor of it.” The flow and sharing of data are becoming the essence of this era. More importantly, based on the principle of protecting the inherent dignity of human beings, data right is a ← xxv | xxvi → new fundamental right at the level of human rights. According to the statement from General Data Protection Regulation (hereinafter referred to as GDPR), it is a basic right for natural persons to obtain protection in terms of personal data processing. This concept encourages us to explore the theoretical basis of the data rights within the context of “theory of human rights” and “theory of property rights,” and through the observation of human rights and property rights, reveal the justification of data rights in legal philosophy, and further explain the possibility, necessity and inevitability of the creation of data rights, data rights system and data rights law. Here the data rights break through the limitations of data protection by theories on personality, privacy, property rights, obligatory right, and intellectual property rights, and become a new kind of rights and interests in the data context. This new kind of rights and interests includes data sovereignty, personal data rights and data sharing rights. The data rights, together with human rights and property rights constitute the three basic rights of future life of mankind.
Data rights are a combination of personality rights and property rights. Data has personality and property attributes, but at the same time it is different from personality rights and property rights. The core value of personality rights of data is preserving the dignity of the data subject as a human being. In the era of big data, individuals will leave “data footprints” in a variety of data systems, and restore a person’s characteristics through correlation analysis to form a “data person.” Recognizing personality rights of data is to emphasize that the data subject enjoys the rights such as freedom without being deprived, reputation without being insulted, privacy without being snooped on, and information without being abused according to the law. At the same time, “data are valued” has become the consensus of the whole society; therefore, it is necessary to give data the property rights and protect it according to the law. As a new property object, data property shall have five legal characteristics which are certainty, controllability, independence, value and scarcity. The personality right of data and the data property right together constitute the two core rights of the data rights.
The subject of the data right is a specific obligee, and the object of the data right is a specific dataset. In a specific legal relationship of data rights, the obligee refers to a specific one. Data rights have different forms of rights such as data collection right, data portability right, right to use data, usufructuary right of data and the right to modify data. Therefore, it is necessary ← xxvi | xxvii → to determine a specific obligee in combination with specific forms of data rights and prescribed contents. For the object of the data right, single and independent data does not have any value. Only the dataset with independent value combined according to certain rules has specific value, and the individual data in the dataset cannot be taken as separate object of the data right. Therefore, the object of data rights is a specific dataset.
Data rights break through the limitations of “one ownership for one object” and “properties are tangible,” and are often manifested as “multiple ownerships for one data.” “One ownership for one object” is the dominant essential feature of property rights. The forms of things have gradually enriched with the advancement of science and technology. With the continuous increase of the types of property rights, the separation of the rights and functions of ownership has become increasingly complicated. “One ownership for one object” has been impacted by “multiple ownerships for one thing” and “one ownership for multiple things” in reality. The extent and form of using things is constantly changing. “Multiple ownerships for one thing” and “one ownership for multiple things” have also obtained some legally tacit approval and vague permissions in the trial practice. With the development of the times and the advancement of science and technology, when the cost of things decreases or even approaches zero, the exclusivity of things becomes unnecessary. This is especially true for data resources of abundance and zero marginal cost. Their natural non-property-right objectivity and multi-subjectivity determine the basic principles of “making the best use of data.”
The data rights have private right attribute, public right attribute and sovereign attribute. The data rights have an altruistic and shared attribute naturally, which is a kind of existence between conflicts and games of private rights and public rights. Once the data rights arise from a natural right to a kind of co-ownership and “general will,” then it definitely transcends its own form and becomes a social right. In the era of big data, if people exist as a kind of data person, then this group of sovereigns composed of data persons will inevitably need a system to ensure that everyone can regain the things lost due to the abandonment of natural rights in the process of securing the private rights with the freedom of being data citizens. As stated in the GDPR: “The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be ← xxvii | xxviii → balanced with other fundamental rights.” In other words, while protecting the rights of data subject, it should still leave room for technological innovation and industrial development at the same time, which is precisely the essence of “making best use of everything” of civil law. Since data has become a key production factor in the digital economy, we need to clarify how data ownership and right to use data are separated. Data rights and data ownership are the core issues which are more important than protection of data rights itself. In the eyes of civil law, everyone is the country itself. This is a very important philosophical framework for defining data rights. Individual sovereignty, social sovereignty, the sovereignty of Internet corporate giants, and the country’s data sovereignty shall be the same kind of good, but they also clash with each other, and they are considered as equally important in the history of Western political thoughts, but what is more important is the individual sovereignty that legal person will defend.
There are five basic dimensions in the data rights system. The legal system is the coordinator of social ideals and social reality, or it is an intervening area that is difficult to define clearly between norms and reality. This is especially true of the data rights system. Its significance lies not only in the maintenance and realization of justice, but also in the creation of order, that is, through the combination, adjustment and protection of system arrangements which combines the relationship and rules of data rights and can realize the relationship of data rights effectively, to the greatest extent, to reduce the costs of data transaction and improve the efficiency of data resource allocation. This requires us to build a set of system and operational rules around data rights, including the system of statutory data rights, data ownership system, system of data rights for public interests, system of data usufruct and sharing system. The core of these five dimensions is the system of personal data protection based on value objectives such as security and risk prevention. However, the protection of personal data cannot be limited to the protection of private rights. It needs to go beyond the model of “consent” or “informed,” and take a more open, inclusive and friendly attitude towards industrial development and social justice, and maintain the dynamics and flexibility of the rules, better (but not more) through a bottom-up, distributed mechanism of rule generation, establish a supporting system that is more in line with specific value objectives, and form a protection regulation and legal system of data that is more in line with real needs.
← xxviii | xxix →Sharing rights is the essence of the data rights. Remixing is the characteristic of the future of human life. The impact of remixing on the structures of power and rights has forced people to reexamine the society and reconstruct a new digital order. Data rights are the source of the inner vitality of the digital order. The idea of data rights is an important force to promote the reconstruction of order. This kind of power marks the decline of traditional power, the expansion of new rights and the transfer of personal sovereignty. Altruism is increasingly becoming the consensus of humanity in the future. Individuals’ “natural rights” are the cornerstone of a society ruled by law. But we will always explore the ultimate norm of digital social life in the supremacy of a sovereign collective “general will” while protecting the inalienable individual rights. The data rights, as the right of future based on the hypothesis of data person, also have such a “general will.” Only when the data person gets out of the economic ivory tower and the sharing becomes the core of the digital order, the essence of the digital power can be manifested.
The data rights law is the legal norms for adjusting data ownership, data rights, data utilization and data protection. Confirmation of data rights is the logical starting point for the protection of data rights and is a prerequisite for establishing data rules. Data rights are an important part of the legislation of data rights. And a law without content of rights can’t raise people’s desire for it. In the legislation, the data subject should be given corresponding rights such as the right to know, the right to rectification, the right to be forgotten, the right to collect data, the right to data portability, the right to use data, the right to benefit from data, the right to share data, the right to seek remedy. Not only must there be provisions on the data owner’s rights to control, use, and benefit from the data, but also the provisions on rights of others to use the data, such as data usufruct, data rights for public interests and sharing right. The value of data lies in its use, under the premise of adhering to the principle of making the best use of data, we should develop the values of data for political, commercial and civil purposes, and force the development of the data utilization model of the “Three-Chain Integration” covering the whole governance chain, industry chain and service chain. The responsibility of protection is an indispensable part of laws, regulations and rules. If a law lacks the provisions on the responsibility of protection, the rights and obligations provided in the law are some ineffective rules. Collection, storage, ← xxix | xxx → transmission, and use of data need to strengthen security management to prevent data from being attacked, leaked, stolen, falsified and illegally used. In addition, the data is related to national security and public interest, and data sovereignty needs to be protected at the national level.
The data rights law reconstructs a new order of digital civilization. The era of digital civilization is an intelligentized era based on emerging technologies such as big data, the Internet of Things, artificial intelligence, quantum information and blockchain. In this era, the trend of data rights is unprecedentedly active, the real-time flow and sharing of data constitutes a data-based ecosystem, and the entire social production relationship is marked by the relationship of data, and politics, economy, culture, technology and so on can be fully transformed, which will trigger unprecedented changes and reconstruction of the models of entire social development and interest distribution. On the surface, the external framework of the existing legal system is indeed very brilliant. From the Corpus Juris Civilis, Napoleonic Code to German Civil Code and other legislative creations, the legal system has been quite complete in the eyes of all beings. It seems to be perfect enough to satisfy human needs for orderly and organized life and the human desire to repeat the experience or arrangements and the impulse to respond to certain situations. However, in the face of contradictions between the laws, in the fields involving civil law, economic law, administrative law, criminal law, procedural law, international law, etc., how the data rights law crosses the border on earth still remains in a state of divergence. But in any case, the data rights law is indispensable for the orderly circulation of data, the premise of data reuse, the balance between personal privacy and data utilization. It is the basic material of the “square and round” world of the legal empire that constructs the space of digital world. The data rights law will be the new coordinate of the rules in the era of digital civilization, the new paradigm of governance and the new starting point of civilization, and will certainly reconstruct a new order of digital civilization.
The data rights law is an important cornerstone from industrial civilization to digital civilization. From agricultural civilization to industrial civilization and then to digital civilization, the law will realize the transition from the “law of man” to the “law of things” and to the “law of digit.” The digital civilization provides the origin of value and the driving force of innovation for the creation of the data rights law. The data rights law also provides an ← xxx | xxxi → existence basis for the system maintenance and order promotion of digital civilization. The meaning of the data rights law is condensed in the order paradigm of digital civilization and becomes the normative basis for maintaining and enhancing this civilized order. In this sense, the data rights law is the product of the transition of civilization, and will also be the cornerstone of humanity’s transformation from industrial civilization to digital civilization.
It is often said that economists are the least likely professional group to form consensus. In a certain sense, it may be even more difficult for the legal scholars to reach a certain consensus, especially when faced with cross-border and marginal issues like data rights. If we extend the thinking including the data rights law to the level of legal philosophy thinking, we will find that the relationships between people, nature and society under the legal framework reflected by data rights, the relationship between people or legal persons and law in knowledge and the legitimacy of legal authority are even more complicated. Data rights are a kind of relatively independent right. Data rights, the system of rights, the study of data rights law and more related issues have become a legal proposition that is closely related to the times and a grand narrative. The study of the data rights law is a groundbreaking and epoch-making work. It is a major social or academic issue that cannot be avoided in any way. Even if we don’t touch it now, the future generations must study it. Therefore, we will maintain such a kind of initial intention and a strategic determination; not based on the present, but on the future; more from the assumptions, bold assumptions and careful verification and cross-border integration. Of course, the work we are doing now is only a theoretical exploration, which only provides scholars with a possible legal proposition or thinking resources of some researches. Just like the world’s first steam engine definitely cannot be used, and the first car cannot be driven on the road, the new thing is absolutely imperfect. But I believe in such a judgment: “On the way heading to the world, digital economy laws are most likely to be the pioneer among other Chinese laws.” We are making an effort now in this regard. And although it is difficult, I am convinced that the light of scientific wisdom and legal rationality will be reflected in the era of digital civilization.
Director of Key Laboratory of Big Data Strategy
August 10, 2018
Rights are the source of power. According to Max Weber, power is “the ability to force others to act according to the will of the power owner, and the persecutor does not act like this in other situations.” American sociologist Parsons believes that in terms of thinking political phenomena, power is a core concept of the great Western tradition. At present, our jurisprudence research is more about the study of legal rights. Therefore, from the political “power” to the legal “right,” the two basic problems are mainly clarified through the normative attributes of the law. One is to directly restrict the power through legislation or making rules, so that the power holder can know the boundary of their power. The other is to define the boundary of the rights of citizens, so that the rights, especially the basic rights, of citizens are authoritative, so that those in power cannot overstep. The most critical research method of law science is to determine the legal relationships, and the content of the legal relationships is the rights and obligations, and the law science is therefore called the law of rights and obligations. But as Foucault believes, power has become a strategic situation, a situation in social life, an effect that basically determines the contrast of social force, a situation that no longer attached to the legal system but permeated the entire society life. At this time, the protection of rights should also be adapted to the changing situation of social life, and effectively maintained in the comparison of new social forces, thus forming a more complete legal system.
On the surface, the external framework of the existing legal system is indeed very brilliant, from the Corpus Juris Civilis, Napoleonic Code to the legislations of German Civil Code, the legal system is quite complete in the eyes of all beings. It seems to be complete enough to satisfy human needs for orderly and organized life and the human desire of repeating the experience or arrangements and the impulse to adapt to certain situations. However, as human beings entered the era of digital civilization, the changes in the relationship between power and rights are profoundly changing the situation of social development. Data power and data rights are intertwined, and relationships of data rights become the main aspects ← 1 | 2 → of the contradiction between productivity and production relations. Data people will come from hypothesis into reality, and data relationships are reflected in personal life, business operation and national security. A new thing that is different from traditional things and transcends traditional people begins to enter the field of legal relations, which is the “data.” In the face of contradictions based on the laws of the eighteenth century and the reality of the twenty-first century, in the fields involving civil law, economic law, administrative law, criminal law, procedural law, international law, etc., data rights jump out of the traditional relationships of legal rights and obligations, and it is no longer the traditional “opposition to the possession of all possessors.” On the contrary, the flow and sharing of data is becoming an era feature, and at the same time, we urgently need to balance the relationship between personal data protection and data for commercial use in the collection, storage, transmission and processing of data. It is exactly the common issue that global cyberspace governance faces. As Immanuel Kant thought that all legislations involve two factors, the first is law, and the second is motivation. The law mainly focuses on the objective inevitability and forms the obligation; and the obligation determines the motivation through the relationship of the law. No matter which type of legislation, the ultimate point is the rights, including the rights gifted and the rights acquired, as well as the rights of nature and the rights provided by substantive law. But Immanuel Kant also adds that asking a jurist “what is right” is like asking a logician “what is truth” which makes him feel embarrassed. Data as a future right, what it is, where it comes from, which also makes us embarrassed. But let’s put it up, maybe the question is worthy of consideration more than the answer itself.
Data rights, human rights and property rights are the core of new rights system with the same value of era. However, since the ownership and boundary of data asset have been in a s vague and controversial state, it is difficult to clearly define the demarcation of the rights, responsibilities and obligations of data subjects, data processors and the actual controller of data separately, which makes data governance to be the most obvious weakness of national governance. The individual rights-based of “I am the master of my information” is difficult to obtain an effective support from the law, which lets the distribution of data rights determined by the ownership of data assets and the division of data quality and security responsibility cannot be implemented, ← 2 | 3 → and interests of data value is monopolized by powerful people and becomes a new origin of social unfairness.
Individual “natural rights” are the cornerstone of a society ruled by law. among various theories of rights up to now, the theory of natural rights is a long-standing classic theory. The theory holds that everyone has certain rights in the sense of being human, and these rights are inherent, non-transferable, and inalienable. At the same time, from the point of view of the current law circle, because the definition of the data rights is unclear, and the related protection is also very controversial. Even if being agreed, it is illegal to buy and sell personal information online. That is to say, even if the account registrant (seller) agrees to sell his or her personal information of citizen, it does not affect the “seller” and the buyer latter to commit the crime of infringing the citizen’s personal information. This is because, in jurisprudence, civil validity and criminal violations are two different levels of evaluation. Citizens’ personal information is firstly a personality right. Personality and identity have strong personal attributes and cannot be bought and sold at will. In other words, data rights or self-determination of information is only a reason for the seller’s innocence, but it cannot deny the criminal responsibility of the “seller” and the buyer latter. Therefore, only if we further clearly define the data rights in law, and put the data rights at the same important position as human rights and property rights, effective protection of data rights can be achieved. The data rights have an altruistic and shared attribute naturally, which is a kind of existence between conflicts and games of private rights and public rights. Once the data rights rise from a natural right to a common and “public will,” then it definitely transcends its own form and becomes a social right. As stated in the GDPR: “To protect the right of personal data is not an absolute right. It should be considered in its role in society and should be balanced with other fundamental rights in accordance with the principle of proportionality.” In other words, while protecting the rights of subject of data, it should still leave room for technological innovation and industrial development at same time, which is precisely the essence of the “best use of things” of civil law.
The Internet brings data transmission, sharing and value exchange and value-added beyond the space, but also faces the challenge of unbounded, priceless and disorderly. From transmitting data by everyone to exchanging value for everyone and sharing the order by everyone, the Internet also ← 3 | 4 → undergoes an evolution from information Internet to value Internet and to order Internet. This evolution of low-level to high-level and simple to complex, is a data state that can’t be copied into copyable, essentially a state of human-centered data flow in virtual space. The non-boundary of such a state makes the data flow unsure, unpriced, untraceable and unregulated. In a sense, the Internet leaves us in disorder and chaos. The flow of data on the Internet is like a wild horse running fast in the wilderness without borders. the wild horses becoming better need to be put on the reins of rules. The establishment of such rules requires both technical support and institutional guarantees.
In the legislative system of our country, on the basis of balancing the personal data rights and the free flow of data value, strengthening the protection of rights of data subjects and the legal definition of obligations of data controllers and processors are the primary and urgent issues the legislation of data rights faced. This kind of urgency not only manifests that how to face and regulate new technologies, formats and models that are changing with each passing day, but also how to promote not impede technological innovation and social development while protecting personal data. but no matter what, the approval of GDPR of Europe Union and the challenges of cross-border flow of data and cyberspace governance are becoming more and more serious. the clear expression and co-identification for the fundamental problem of data ownership, the origin, boundary and attributes of rights, that is, the legal basis of “data rights” are even more important. it is also a subject pertinent for us to seize the important opportunity of developing big data and promote the modernization of the national governance system and governance capacity.
In Sapiens: A Brief History of Humanity, Yuval Noah Harari wrote, “Exploring the characteristics of modern society is as difficult as questioning the colors of the chameleon. The only thing we are sure about is that it will change constantly and be an eternal revolution.” In contrast to the foreign big names that came to China to promote welfare of science and technology in the past, if Nicholas Negroponte brings the imagination, Kevin Kelly brings inspiration, Harari brings us more with an anxiety that has been abandoned by the times. But they have a common feature and reach an unprecedented consensus on the question that the Internet smashes the old order, the old rules, the old pattern and the old world, however, there ← 4 | 5 → is no answer to how the Internet reconstructs a new world. The introduction of data rights law provides us with a new perspective to re-examine the world with the criteria of law.
Modernity is not a fixed state, but a force field that various strengths compete. Any hegemonic tendency of principles, powers and elements will infringe other rights subjects, and any self-certification of claims and schemes must also communicate and dialogue with others. This “complex modernity” determines the significance of introduction and legislative practice of data rights for humans enter digital civilization. In the face of the increasingly complex digital civilization and the transformation of its social order, the enormous volume and influence of the digital economy, we need to have a relatively clear concept system of data rights, and form a general cognitive framework that inherently regulates digital order with complex features. Promote data rights from necessary to statutory and to reality. This is a process of inclusive and prudent legal practice, and the relationship showed between data rights not recognized and recognized by law, the data rights institutionalized and realized, is not only a reflection and critical consciousness based on historical experience, but also a construction consciousness based on norms and beliefs. Only by respecting the universal norms and values of modernity can we gradually step out of the disorder and chaos of the era of digital economy. Only by forming scientific and reasonable rules of data protection can we realize the full circulation and use of data, promote economic growth and social progress under the premise of ensuring personal dignity and freedom. This is also the common question of human beings moving towards the community of digital civilization.
Harari predicted the law of the future in Homo Deus: A Brief History of Tomorrow. He believes that in the future artificial intelligence will gain a dominant position, and our law will become a digital rule, regulate all human behaviors except the laws of physics. For the past, law was a product of civilization; for now, law is a tool for maintaining civilization; for the future, law is a means of promoting civilization. The data rights law is the necessity of orderly circulation of data, the balance of data reuse, personal privacy and data utilization. It is the basic material of the “square” world of the legal empire that constructs digital space. The light of scientific wisdom and the light of legal rationality will complement each other in the era of digital civilization. ← 5 | 6 →
Remixing is a kind of internal structure and motor process of symbiosis and mutual transformation of chaos and order. It is not a hard mix of old ways and new ways, but an integration of the elements and reconstruction of arrangement. The evolution of the world in chaos and order makes people realize the power of remixing, and block data interprets such a remix full of power. From deconstruction to reconstruction, as a paradigm of thinking in the field of remix, block data helps humans better grasp the law and predict the future. Human beings are entering an era of remixing and also an era of living together. The human beings living together need order by nature, and the impact of remixing on the structure of rights let people re-examine the society and the construction of a new digital order. Data rights are the source of the inner vitality of digital order. The claim of data rights is an important force to promote the reconstruction of order.
The Age of Remixing
Remixing is a kind of symbiosis and mutual transformation on internal structure and movement process of the formless and order, which is not the rigid mix of the old way and the new way, but the reconstruction of the integration and arrangement of the constituent elements. The evolution of the world in the formless and order has made people realize the power of remixing, and the interpretation of block data is such a kind of power. From deconstruction to reconstruction, block data is used as a thinking paradigm in the field of remixing, which helps us to better grasp the law and predict the future. We human beings are entering a time of remixing and common life as well. Human beings living together demand order from the nature. And the impact of the right structures from remixing makes people re-examine the society, and the construction of new digital order. Data right is the source of the inner vigor of the digital order, and the proposition of data rights is an important force to promote order reconstruction.
We are in and will be in a time of remixing for a long time. The progress of human society has been being propelled mainly by remixing, such as the growth of civilization, the economy, and the data. “Remixing” is an inevitable change of power, which has brought unprecedented impact on legal rules and order of rights.
Remixing and human society: The formless, order and remixing
The universe was born in no forms. In ancient China, there were legends about the formless, among which Pan Gu’s story, dividing the heavens from ← 7 | 8 → the earth, is the most famous one. The formless, in the consciousness of the ancients, represents the vague image of the universe before it is divided into heavens and earth. In the West, the ancient Greeks also believed that the formless was the trans-universe material before the world was formed. According to the Book of Genesis: “the earth was waste and without form; and it was dark on the face of the deep.” The world is made up of floods and deep darkness. The formless, in the early cognition of the Ancients, was synonymous with disorder and no form.
In the 1970s, with the great progress of science, people gradually realized the deeper essence of the formless – the combination of disorder and order. The vague notion that had puzzled people for many years was gradually made clear by scientific ways. In a vast land of truth, it is the birth of remixing theory and a complex system that refresh the world. The research of complex systems such as nonlinear dynamics, butterfly effect, fractal theory and so on, came into being, which not only added new ideas and vigor to research, but also brought us wide application prospects, and made people realize that variability, uncertainty, complexity and fuzziness are the essence of the world.
The remixing is often mentioned equally with “entropy.” “Once upon a time, a singular point was walking along the street, and suddenly it blew up.” This is the vivid description of the Big Bang in physics. In statistical physics, the definition of “entropy” is the proportion of the equivalence state in all possible states. Boltzmann defines “entropy” as the number of equivalence state under certain conditions. In fact, entropy is not used to measure the degree of disorder, but to measure the multiplicity of a state, and the state of high entropy is very likely to be disordered (Hidalgo 2015, p. 18). Before the Big Bang began 13.8 billion years ago, everything was in order. However, after the Big Bang, the universe became more and more formless. As everything becomes dispersed, the particles become formless. As to the universe, the degree of the order has been decreasing and entropy has been increasing until today.
As the product of the Big Bang, time is the one-way direction drawn out by the “law of entropy generation” of the second law of thermodynamics., The irreversibility of the “law of entropy generation,” also represents that time is irreversible. The irreversibility of time brings us order from the formless (Hidalgo 2015, p. 29). While order and the formless are in opposition ← 8 | 9 → to each other, they can coexist in harmony. Remixing is a kind of symbiosis and mutual transformation on internal structure and movement process of the formless and order. Remixing is not the rigid mix of the old way and new way, but the reconstruction of the integration and arrangement of the constituent elements. Basically, new values are often created by the combining ideas and elements from different sources, such as labor and capital, technology and brand, hardware and software and the globe and region.
Remixing is innovation
Recombination is the intrinsic mechanism of remixing and innovation. It is a basic way to create and innovate in the future. Jobs once said, “Creativity is just connecting things. When you ask creative people how they did something, they feel a little guilty because they didn’t really do it, they just saw something. It seemed obvious to them after a while. That’s because they were able to connect experiences they’ve had and synthesize new things.” Thus, innovation is to re-break the stable structure of various systems and processes that have already been built, so that it becomes a formless state, and then the original elements are recombined. The so-called “innovation” is to break and recombine the original model and structure, rather than grows out of nothing. Even the birth of the iPhone and WeChat are the breakthroughs and reconstructions to their original situation, trade, practice, mode, and thinking.
Remixing is a vital disruptive way, from which innovation comes. It is a powerful way to create value by combining new methods. The new value can be created by remixing and allocating resources. Remixing is the essence of innovation. In the natural world, the softest graphite and the hardest diamond are both made of carbon atoms, while their huge difference is that they are combined in different ways. Human beings need to release the intelligence of the individual through remixing, and reconstruct our forms of organization, lifestyles, ways of creation, so as to gain collective intelligence.
There are three principles in remixing. First, to be able to identify the potential shared values. Finding more values created by remixing of resources than values created by using resources alone, that is, to dig out ← 9 | 10 → value pre-judgment of “1+1>2.” Second, to achieve a harmonious and unified relationship. The combination must operate as a whole in creating value, which is often referred to as collaborative innovation. When recombination is conducted, the shared value does not automatically generate value creation and distribution, but usually depends on how to combine the establishment and management after the initial agreement was concluded. Finally, to share value. Shared value is the ultimate goal of remixing and one of the most important principles as well. Determining the types of income distribution is as difficult as estimating shared values. If the value of remixing cannot be shared, the unfair types of distribution will make the process of remixing fall short.
Disappearance of boundaries and the advent of the remixing age
Remixing means the disappearance of the old boundary. The Internet brings many disappearances of boundaries, such as the disappearance of the boundary between enterprises and market, disappearance of boundaries among industries, and so on. By rearranging the combinations, the boundaries between the original features are broken. The disappearance of the old boundary, the moving from order towards disorder, is not a random mix with a bunch of coincidence, but an orderly arrangement of the combination; so the disorder is carried out in order. Therefore, the remixing is the pursuit of a state of balance between order and disorder.
The real and the virtual world are remixed. The development of the Internet has created a new spatial domain for mankind – the virtual world. The real space coexists with the mixed state of virtual world & reality in the living space. “The entire global economy is tipping away from the material and toward intangible bits” (Kelly 2016, p. 242). The world is also moving from the real world to the virtual world. The virtual world and the real world are embedded in each other, and human beings are forming a digital logic that transcends virtuality and reality. Compared with the real world, there are several major changes in the virtual world. First, the reversibility of time and the sharing of space; second, the instantaneity of time and the flowing of space; third, the elasticity of time and the compression of space. The advent of the virtual world make people say goodbye to a single physical ← 10 | 11 → space structure, but hello to the two-way space of reality and virtuality. The virtual world reflects the human nature of openness and shareability, and the humanistic implication embodied in the virtual space itself is beyond doubt. But at the same time, it frees people from a kind of bondage, to a certain extent, it also separates the development of people and society from the real world.
The world is moving from the traditional “era of labour division” to “era of labour combination.” In a remixing world, where crossover occurs at any time, the resources of one area are rearranged in combination with the resources of another, which may lead to innovation. With the continuous evolution of civilization, the progress of science and technology and the growing cognition of the world, the features of the world in front of us are becoming more and more clear. However, with the advent of the remixing era, the present world is still full of uncertainty, often accompanied by unpredictable risks and changes, in which human beings are still walking alone in the vague cognition. There are times when we cannot measure, predict, and control accurately. Values, laws and rules are uncertain, and so are rights. These uncertainties imply complexity and disorder, which bring formless and confusion to human society, and bring risks and challenges to the common life of mankind as well.
Growth stemming from remixing: The growth of civilization stems from remixing
The development process of human society stems from repeated remixing. In the past tens of thousands of years, the development of human society has undergone a process from diffusion to forming into different groups and to the final merger, but the merger does not meaning return to the original point. “So, over the last 70,000 years, humankind first spread out, then separated into distinct groups, and finally merged again. Yet the process of unification did not take us back to the beginning. When the different human groups fused into the global village of today, each brought along its unique legacy of thoughts, tools and behaviours, which it collected and developed along the way. Our modern larders are now stuffed with Middle Eastern wheat, Andean potatoes, New Guinean sugar and Ethiopian coffee. Similarly, ← 11 | 12 → our language, religion, music and politics are replete with heirlooms from across the planet” (Harari 2016, p. 592).
The evolution of human civilization is merely repeated remixing of thoughts. Around 500 BC the golden age of human thought, also known as Axial Age, saw many great spiritual mentors appeared in various civilization – sages of Ancient Greece, Jewish prophets of Israel, Sakyamuni in ancient India and China’s ancient philosophers … The ideas they put forward have shaped different cultural traditions and influenced human life as well. In the past 2,000 years, every social progress has not been the discovery of new ideas, but the rediscovery and practice of some thoughts in Axial Age, such as the Renaissance bringing the progress to Europe, the Protestant Ethics contributing to the rise of America, the Confucianism, Buddhism and Taoism asserting to the influence of China.
The evolution of emerging technologies is only a remixing of early primitive technology. The emergence of technology is accompanied by the development of human beings, which also originates from the needs of human survival. Larry Downes points out in his Laws of Disruption that the development of technology was exponential. Brian Arthur, an economist at the Santa Fe Institute, says, “All new technologies come from a combination of existing technologies.” Modern technologies are combinations of earlier primitive technologies that have been rearranged and remixed (Kelly 2016, p. 223), and we can combine hundreds of simple technologies with hundreds of thousands of complex technologies, from which countless possible new technologies are created, all of which are the product of remixing.
The innovative development of new media is the remixing of old forms. The historical origins of “remixing” are also embodied in the re-creation of music. At the end of nineteenth century, the recorder’s creation made people able to rearrange the normal listening order, which is the first remix of music. Over the past few decades, the birth of hundreds of new forms of media has been remixed by old forms. The traditional media still exist, for example, a newspaper article or a 30-minute television sitcom, or a four-minute pop song. Now, after being recombined, there have been new and attractive forms of medium, such as Weibo, dynamic diagrams, short videos, and so on. In the future, newspaper articles, novels, TV sitcoms, or a four-minute pop music will be remixed in the form of basic elements, and recombined into other new forms. ← 12 | 13 →
Economic growth comes from remixing
Starting with classical economics, the impetus of economic growth has always been the research hot spot of mankind. As to what the decisive factor is in economic growth, there is no consensus in theory circle. In economics, it has a long tradition to describe its nature with factors of production (such as capital, labor force). The explanations by different theories on impetus of economic growth mainly focus on the analysis of the contribution to the factors of production, less attention is paid on other factors. At the same time, because of the different characteristics of the times, the research elements and objects that the researchers selected are not the same.
The theme of The Wealth of Nations, written by the originator of economics Adam Smith, is “The Nature and Causes of The Wealth of Nations” (Zhou Yuehui 2015), which is to study “How to achieve economic growth of a nation.” Adam Smith broke up the economy into land, labor and machinery, and he equated machinery or fixed capital with the growth of people’s production capacity. Thus, he regards the physical capital accumulation as a decisive factor in economic growth, and he argues that “The intention of the fixed capital is to increase the productive power of labor, or to enable the same number of laborers to perform a much greater quantity of work.” Adam Smith regards the improvement of machinery as the progress of people’s production capacity,
It is upon this account that all such improvements in mechanics, as enable the same number of workmen to perform an equal quantity of work, with cheaper and simpler machinery than had been usual before, are always regarded as advantageous to every society. (Hidalgo 2015, p. 168)
Moreover, in Adam Smith’s theory, he holds that the division of labor promotes economic growth. Division of labor is the best way to improve economic efficiency and promote economic growth. David Ricardo, another classical economist, has also pointed out in his book On the Principles of Political Economy and Taxation that capital accumulation and profit growth provide favorable conditions for economic growth, and that the driving force for economic growth include increasing labor productivity, compressing necessary working time and reducing workers’ wages, etc. ← 13 | 14 →
The theory of modern economic growth holds that economic growth depends not only on capital, labor and the relative effect of capital and labor on production growth, but also on the most important driving factor of technological progress.1 Joseph Schumpeter, an Austrian economist, put forward a unique theory of economic growth in The Theory of Economic Development. In Schumpeter’s eyes,
Nor will the mere growth of the economy, as shown by the growth of population and wealth, be designated here as a process of development. For it calls forth no qualitatively new phenomena, but only processes of adaptation of the same kind as the changes in the natural data. (Schumpeter 2012, p. 67)
Schumpeter holds that only innovative activities are the fundamental force to drive economic development. He identifies five types of innovation: 1. the introduction of a new product or new product quality; 2. the introduction of a new production process; 3. the opening up of a new market; 4. the securing of a new source of raw materials or other inputs; 5. the creation and application of a new organizational structure in an industrial sector. Schumpeter further emphasizes that the new combination of innovation and factors of production and the organizers of economic development are entrepreneurs; and it is the “entrepreneurial spirit” that encourages them to innovate, which could introduce a “new combination” of factors and conditions of production that had never been made into the production system to achieve the “new combination.” Thus, in Schumpeter’s theory, the impetus for economic growth comes from innovative activities and the “entrepreneurial spirit” that promotes such activities.
In the field of entrepreneurship, Schumpeter holds that business routine can be overturned by a new combination of business. Entrepreneurs have taken out these new combinations – the existing and new manufacturing processes, the markets and new sources of supply, the new products and ← 14 | 15 → technologies, and even the new corporate structures and strategies – that are the cores of Schumpeter’s innovation theory. Schumpeter’s conclusion of his observations is still applicable, but the combination is not just the ones that entrepreneurs met. Today, the company’s executives are promoting this innovation process. In the past 10 years, the strategy of asset and resource combination from inside and outside the company has been widely implemented and popularized. The implementation details of these combinations are different, either temporary or permanent, lose or strict, exclusive or inclusive. But its essence is to create value by remixing or recycling of sources (Gomes-Casseres 2017, p. 7).
Coincidentally, economist Paul Romer holds that “Truly sustainable economic growth stems not from the discovery and use of new resources, but the rearranging of existing resources to generate greater value.” This is in the same way as Schumpeter’s “Theory of Technological Innovation,” which focuses on “new combination” or “new integration.” Kevin Kelly, the founding editor of Wired, known as the prophet of “the spiritual godfather of Silicon Valley,” mentioned in The Inevitable that “economic growth comes from remixing.” At this point, the study of economic growth turns gradually from the focus on the factors themselves to the reorganization of the factors, which becomes the only source of power to innovation and wealth in digital society (Kelly 2015, p. 242).
Data growth stems from remixing
The bidirectional evolution of knowledge, information and data is the course of human civilization progress. From the perspective of process of human thinking paradigm, the cognitive system at each stage is different, so are the resulting tools of thought. The first stage, knowledge is power; and the knowledge is the product of human thinking. The second stage, information is energy; and information is the product of computer technology. The third stage, data is variable; and borderless data aggregation cannot be achieved by the thinking paradigm of human brain nor computer. It must be the integration of people, intelligent machine and cloud computing – a cloud-brain thinking. In other words, the human thinking paradigm is divided into three stages, namely the human brain age, computer age and cloud-brain age. ← 15 | 16 →
Data is both an independent variable and a dependent variable; at the time of its own change, it will cause the change of the outside world. Besides the process of data change of dependent and independent are simultaneous. Data is an objective existence and a data mapping to the real world. The data itself is in the motion and change, and it is the information communication technology that causes the natural growth from improvement of production efficiency to more advanced intelligence stage according to its own development logic (Key Laboratory of Big Data Strategy 2016, p. 15). In terms of quantity, big data is not only huge, but also constantly changing. The Digital Universe, a report published by IDC, provides a quantitative assessment of global data stocks and growth trends. The report shows that the global IP (protocol for interconnection between networks) flow reaches 1EB (AI-byte), which takes one year in 2001, only one day in 2013, and only half a day in 2016, to 2020, the digital universe will grow 10 times, the amount of data generated per year from the current 4.4 trillion GB (gigabyte), growing to 44 trillion GB.
Data transboundary is an important precondition for the formation of large connections. All the people, things, objects are embedded in a huge social network, our interconnected relationship is not only the innate, indispensable part of life, but also an eternal force (Christakis 2017). Albeit data in different fields and industries are separated into strips by social division, the transboundary of various industries is forced by development of Internet technology. In its essence, the transboundary is building up new connections among things, especially establishing effective ones among redundant data, in order to discover new value. For example, China Vanke and Taobao established a cooperative relationship, so as to obtain a large amount of customer information; Alibaba not only focuses on e-commerce, but is also involved in logistics, pictures, artificial intelligence and other fields. The attraction of transboundary is to combine and integrate different elements to discover the potential value.
The recombining of data is critical to the continued growth of data volumes. In terms of nature, transboundary and cross-field association and reorganization are the nature of the development of data itself; it can break the boundaries of time and space to quickly transfer and aggregate, which put the data of the same type, in the same field, into classes, with interaction, and the formation of higher-level, cross-field continuous aggregation, to form ← 16 | 17 → a new dataset in new conditions. Multiple forms of data, multiple sources, and complex connections between data make the data world more mysterious and exciting (Key Laboratory of Big Data Strategy 2016, pp. 15–16). A single data is meaningless, while the real value generates from huge subsets through correlation analysis of the recombined, new data set.
Data growth is at the heart of the growth of the digital society. Ma Yun said in the 4th World Internet Conference that, “in the next 30 years, data will become the means of production, computing will be productive force and the Internet will be a production relations. If we do not embrace digitization, and not connect to the Internet, it will be more frightening than didn’t connect to the electricity in the past 30 years.” A data set in a “sleepy” state needs to be remixed with other datasets to create new value, so the combination of different datasets is always more valuable than a single dataset. The reorganization of data has become the core of growth.
The legal essentials of remixing: Remixing is a double-edged sword
As far as creation is concerned, remixing creation is different from the traditional forms, for it creates new works on the basis of the original work in the form of audio mixing, mix-and-match and so on. In the era of big data, people can create large works by mixing and collaborating, which was unthinkable in the past. Wikipedia, for example, brings together the wisdom of global netizens in a remixed way, the richness of which was far beyond the creation done by traditional encyclopedias. It can be said that remixing creation contributes to the development of culture. Besides, it involves the right of the public to express freely, and the relationship between copyright and freedom of expression, “which can be regarded as the relative two sides of the same coin, the former is ownership, the latter is the political right of society. They are linked together because both involve the flow of information, one for profit and the other for freedom. It’s like the Canal gate, which can facilitate the flow of information and may also hinder its flow” (Patterson & Lindberg 1991, pp. 123–124). The copyright owner in remixing creation enjoys exclusive rights to the work, and the public enjoy the right to freedom of expression. The public has the right to obtain works and make use of them, which of course includes the use of originals to create remixing ← 17 | 18 → works, but the public may not violate the relevant laws in the exercise of the right to freedom of expression.
The threshold for innovation in the era of remixing is lower. Technological innovation has changed the possibilities for invention; and the development of digitalization and the Internet has allowed people to innovate at any time, anywhere. In the past, professionals were the mainstay of innovation, but now, everyone has that possibility; in the old days, only few people were able to publish and become famous; whereas, now, everyone has the opportunity to become famous as long as there are mobile phones, computers, and the Internet. The creative environment has changed, as a matter of course, the way to innovate in the era of remixing is more accessible, as the threshold is lower. And people are increasingly choosing to use remixing to express their innovation and desire. But, because of the lower threshold, remixing brings both value and many legal risks to mankind.
“Remixing culture” faces legal conundrum. Lawrence Lessig, an American scholar, discusses the legal issues brought by “remixing” in the book Remix: Making Art and Commerce Thrive in the Hybrid Economy (2008). Wikimedia economic phenomena, data collection and trading of search engine … the threshold of “remixing culture” is so low and common that brings us both business opportunities and increasing tort disputes. When “remixing” is used to describe cultural phenomena, the boundaries of creativity and copying become blurred. Some of the “remixed” works have gone beyond the level of the primary creation that might step on the boundary of copyright infringement. Like, the trendy works of Fan articles or Fan Fictions,2 and “the transformation problem” mentioned in Kevin Kelly’s book The Inevitable. Transformation is another expression of “formation.” To accept “transformation” means that the works we create today will and should generate something else in the future. Then, how to define the boundary between “transformation” and “formation” and solve the tort problem involved in fan fictions is an urgent legal issue at present. ← 18 | 19 →
The impact of remixing on order
In the remixing era, human’s coexistence and living together require a rudimentary social order. The core of the social order needs for each social community to address the question of how to use common social resources or wealth to continue its own development. This requires each society choose and establish an order of data rights used by who (individual, collective or other forms of organization) and how to use (what nature of rights, etc.). This order is usually centered on the design of the rights system, which takes data rights as the core.
This system of rights basically includes: first, the allocation or confirmation of the range of rights that social subjects can possess; secondly, the recognition of the right of these subjects and the general rules governing the exercise of rights; and thirdly, the protection of the exercise of the rights of the subject and the prohibition or punishment of acts endangering the order (Gao Fuping 2004). The norms of these three types of rights are the basic content of the system of data rights to standardize the data rights in the remixing era. It is the goal to achieve the common and orderly use of social resources by social subject with the three kinds of norms or rights arrangement.
Data rights are the first order of human society in remixing era, which defines the ownership of data resources and constructs the order of resource utilization of the whole society. Data rights defines the scope of several rights among individuals, giving individuals the autonomy to independently deal with the data they own, thus protects individuals from slavery and exploitation by others and safeguards the equality and free life of individuals. Data rights are the link of social organization. Human beings always have to combine into different social organizations in order to survive, from families with blood ties to other economic organizations such as partnerships and companies that are linked by economic interests or contracts, which are social organizations that achieve various purposes and are based on clear data rights. It is difficult for a single subject in society to become an economic organization with a common purpose. Data rights sustains the survival boundary of a social community, from natural villages and towns to countries, where everyone lives in. They are various communities of all levels of human life. The boundaries of such geographical community will extend ← 19 | 20 → in the future, until being defined by data rights, since the primary order of society is to maintain stability and security and non-aggression against the scope of the activities of individuals, families and various social communities.
The remixing challenge to law
In the remixing between the real and the virtual world, people’s rights to data gradually transfer from ownership to the right to use. The right to data is moving away from ownership towards the right to use; it is also moving away from replicating value and towards the value of the web; and at the same time towards a world that is bound to come, where there is an ever-growing remix. Although at a slow pace, the relevant laws will be gradually established (Kelly 2015, p. 241). So, what should the new law support in a remixing world? This is a controversy and conundrum that are facing the digital society.
Remixing is the rearrangement and reuse of existing things, which poses a great challenge and destruction to the traditional concept of property and ownership. If a piece of melody is your property, just like your house, then others right to use it will be greatly limited without authorization or payment of the corresponding remuneration. Early in 1813, Thomas Jefferson recognized that opinions could not be regarded as property, or that even if they were property, they were different from real estate. He wrote: “A man has gained a point of view from me; and he has not done me any loss by accepting this view as a guide; it was like using my candlestick to light his candle; and his harvest of light did not dim me at the same time.” For the most part, our legal system is still in the guidelines of the agrarian age, regarding property as an entity, which has lagged behind the development of the digital age.
The current intellectual property system and the concept of ownership also constrain the development of remixing. For the possession of non-physical materials (such as music, text, views, etc.), how to define them properly? Whether it is infringement to completely replicate, or it is not a complete “replica” as long as some addition of transformation and change exist. All these still need further clarifications of the social concept and system. There is always controversy over whether it is legal for people to use music clips ← 20 | 21 → as a sample for remixing, especially when the songs used as samples or the songs borrowed have been reaping handsome rewards. There is also a legal controversy over Google’s use of part of books by scanning original ones, which has forced Google to stop its “Book Scanning” program. Intellectual property is such a flux. The remixing creation has led to disputes about copyright issues, that it may endanger the interests of copyright owners, mainly in the following aspects. Firstly, remixing creation may undermine the author’s moral rights of original works. The creation of the remixed works may destroy the integrity of the original works with deletions and modifications. Secondly, the remixing creation may harm the property interests of the copyright owner. Some authors of the remixed works plagiarized a large number of prior works in their creations, thus forming a competitive relationship with the prior works. In addition, the remixing creation is not a fair use. Some people believe that remixing creation involves copyright infringement, which is not a fair use of prior works. For these reasons, a considerable number of American remix music creators, fearing involvement in litigation, are afraid to publish mixed music works (Hu Kaizhong 2014). Therefore, although the remixing creation could promote cultural development, there are great contradictions and differences in the legitimacy, if this problem is not properly solved, it will hinder the healthy and orderly development of the remixing creation.
Block Data Paradigm
Remixing means the integration of internal and external resources together to create new values, so the value of data lies in the remixing. Block data, with a specific platform to integrate data resources, plays an aggregate role to make multiple integration and correlation analysis, so as to reveal the nature and laws of things and to create new values. In a way, block data is a kind of thinking paradigm in the remixing field. But, it must be pointed out that, after massive data is aggregated and remixed, the problems such as data disorder, ambiguity of data rights become more and more prominent, which need multi-dimensional governance of “technology & system.” ← 21 | 22 →
Remixing: Value embodiment of data – the datamation of everything
The development history of human civilization is also the course of vast data generation, iteration and evolution. If the significance of the world is refreshing, then data is the fundamental attribute and existence form of the refreshing. Whether we still have the good memory of the old days and the fear of the new era in our hearts, a datamation age of “everything is recorded and analyzed” has come. “In the world of big data age, all social relations can be expressed in data, and people are the sum of relevant data” (Li Guojie 2014). In this era, virtual digital space and the real world are in parallel existence, accurate mapping, and deep blending. Gary King, a sociology professor at Harvard University, said, “This is a revolution. There is a movement of quantification rumbling across fields in academia and science, industry and government.” It is not only the era’s characteristic that expressing everything in a quantified way or taking data as the essence of the world. It is only because of the development of technology today that is closer to this essence.
Data defines everything. When all relationships can be characterized by data, all trends can be predicted by data, then the way people view the world may change by datamation means that help to understand human behavior and human society and explore how to reveal the common features of social macro-behavior from the randomness and disorder of social micro-behavior. The social orders, social rules, social behaviors and social governance will be reconstructed under the natural, economic and social change. A new digital society will be born.
Data connects everything. Datamation of everything means the interconnection of everything, and “connection” has become the most basic and important feature of the digital age. The development process of human history is a process of constantly expanding and deepening the connection with all things. With the help of modern information technology such as the Internet, big data and artificial intelligence, everything can be connected, people to people, people to things, things to things, which leads to the arrival of the era of the interconnection of everything; furthermore, the interaction is much more frequent and effective that has transcended time, space, geography and even the boundaries of species.
Data quantifies everything. When everything in the world becomes data, it is the realization of “datamation of everything in the world,” that is, the ← 22 | 23 → realization of “quantifying everything.” All things in the world can be used as “variables,” to accept data analysis, and achieve potential value. Lord Kelvin, a British physicist, said, “When you can measure what you are speaking about, and express it in numbers, you know deeply about it; but when you cannot express it in numbers, your knowledge is a meagre and unsatisfactory kind: it may be the beginning of knowledge, but you have scarcely, in your thoughts, advanced to the stage of science.” Data, as a new way of expressing the world, is profoundly reforming the human way of communication, organization, production and life, driving mankind into a new era of digital civilization.
The data value lies in remixing
Human understanding on data value can be divided into three stages: first, the small data era pursuing data refinement based on computers; second, the big data era deeply exploring data relation based on systematic data resources; third, the hyperdata era symbolized with data explosion and congestion. Data is everywhere. They hide in the dark and ridicule people who do not make good use of them, and the truth is often hidden in the arrangement and combination of data.
Big data is big not only in its big capacity, more in its big value, and both of them which are based on big integration. Data is a new productivity, but it is fragmented and can only be of real value as long as it is aggregated to allow various data to have an aggregation effect. The value of data does not simply exist in the collection of massive data, but in the correlation between data, and in the rules and principles behind it. That is to say, the value of data is not how big the data is, but how high its relevance is; the law and its value could be found via the analysis of multidimensional and multi-level data and its correlation. The value of data does not exist in static data combination, but in data collisions and aggregation that can release the intrinsic value. A dormant dataset’s potential value needs to be released by combining it with other different datasets. Like mineral deposits, the data can also be low-grade or high-grade. As to the dispersed and disordered data, it is necessary to make a combination and integration to come out a fresh analytical logic, so as to reconstruct the traditional industry, social governance, government supervision and legal system. ← 23 | 24 →
Integration is the value of big data. The future is an era of cross-border integration in which data creates value and innovation drives the future. Cross-border remixing can realize the “one plus one produces a value far greater than two” which is the essence of data. According to the French poststructuralism philosopher Jacques Derrida, “Each deconstruction manifests itself as the interruption, division, or disintegration of the structure, but the result of each deconstruction produces a new structure.” The deconstruction of data, datasets, and data relationships is similar to the deconstruction of the product, that is, each “original,” after being deconstructed, will is reassembled with new products to achieve new uses and values. Reconstruction is a kind of overall transformation of the deconstructed data, which constitutes a new set of values different from the past.
Data remixing: Combination, integration, and aggregation
The value of data remixing is the discovery of new rules and new values. The way of data remixing, from the perspective of interaction, can b divided into three levels: data combination, data integration and data aggregation, which is the realization of the deep aggregation of dispersed and disordered data from lower level to higher level (see Figure 1).
The data combination is formed by a simple combination of data from all sides, which can embody the whole characteristics of things. Remixing of such data combination results in a physical reaction, and the nature of the data attribute has not changed. For example, a credit report, including transaction data, communication data, and shopping data, etc., is only a simple collection of information. However, data remixing can realize its value only when multiple data exist and aggregate. Remixing of such data aggregation is a chemical reaction, which create value. Such as, blacklist. It is linked through financial data and communication data to determine whether certain data are blacklisted. For instance, users with abnormal financial behavior and frequently changed mobile phones and times of downtime, can be judged as blacklist users. Data aggregation creates new value from aggregating and incubating on both sides, and the remix of such kind results in a nuclear reaction, thus a new pattern come into being. For example, the installment loan, with the risk control ability of big data, not only reduces the audit ← 24 | 25 → process, but also can carry on the loan monitoring, the post-loan management, and the lost user’s location and collection, which is a package plan.
The remixing of data is not a simple and easy thing, which cannot be realized overnight. Data dictatorship, data standards, data ownership, data security and other problems remain to be solved. Among them, three problems are relatively more important: first, the problem of data security. How to ensure data security, protect personal privacy and the right to know, and how to guarantee the realization requirements of the legal data subject? Second, the problem of data pricing. The assessment of data property rights and data pricing have not yet formed a mechanism. The problem is how to determine the market price and who has the final pricing rights. Third, the problem of definition of ownership. Questions like how to establish the legal status of data, how to attribute rights, and how to define the distribution of benefits are extremely important problems, and at present they is no final conclusion. The problem of data order is prominent with the increasing number of disputes and cases involving data. In the case of imperfect legal ← 25 | 26 → system, the mining, trading and application of data will bring the data ecosystem into the black hole of infringement, out-of-control and even crime.
Block data: Thinking paradigm in the remixing field
Big data has ushered in a major transformation of the times. Just as telescopes make us to feel the universe, and microscopes make us to observe microbes, big data is changing our ways of lives and ways of understanding the world, which is becoming a source of new inventions and services; and much more changes are coming into play (Mayer-Schönberger & Cukier 2013).
From big data to block data
The booming of massive data has been accompanied by an increase of uncertainty. Data explosion is faced with the potential problem of data waste that is troubling human, which is known as the “Paradox of Massive Data” that needs a new method of data science to solve. It is in such situation that block data came into being. Block data is a sociological paradigm of data taken human as its origin, which emphasizes more on the use of data technology to analyze human behavior, grasp human law, and predict human future. Integration from strip data to block data, and movement from chain era towards block era will lead a thinking mode and behavior paradigm reform of the whole human society fundamentally and subversively.
Point data: Isolated data for discrete systems. With the convergence and interaction of information technology and human production and life, as well the rapid popularization of the Internet, global data presents the characteristics of explosive growth and massive agglomeration. However, large-scale data, without any connections, exist independently, forming various discrete isolated point data. Point data is an important source of big data, which has the characteristics of large volume, decentralization and independence. Point data comes from a discrete system of individuals, businesses, and governments that involves all areas, aspects, and links of people’s production and life; such data has been identified and stored in a variety of corresponding systems, but because there are no value correlations ← 26 | 27 → with other data, or the value correlations is not presented, they are not used, analyzed, or even accessed.
Strip data: Data collection under a single dimension. Data, whether the internal data collected by traditional industries, or the department data concerning health, education, transportation, finance, security and other sectors held by governments at all levels, or data of new industries such as e-commerce and Internet finance stored by Internet enterprises, can be defined as strip data that is linked together in an industry and field. At present, the application of big data is mostly presented with strip data. Strip data is a set of data in a certain direction, so it can improve the efficiency of data use, but also made data trapped in the isolated chain, forming various “data islands” and “data chimneys.”
Block Data: correlated aggregation on a specific platform. Block data is the aggregation of a variety of discrete point data and segmented strip data on a specific platform, and make it have a continuous polymerization effect. Block data contains a highly correlated mechanism that provides the conditions for continuous aggregation of data. The correlated aggregation of block data occurs on a specific platform and is not limited to an administrative region or physical space. The correlated aggregation of block data can realize the trans-boundary agglomeration of data in different industries, departments and fields. The block data characteristics of platformization, correlation and aggregation promote the development of big data into a new stage of block data fusion, which break the boundary of “strip,” and make the realization of strip data integration on the “block” platform. In addition, through the multi-integration and correlation analysis, a faster evaluation and prediction to things can be made more comprehensively, accurately and effectively, so as to uncover the nature and laws of things, and create new values.
Deconstruction and reconstruction of block data
The essence of block data is trans-boundary, integrated, open, and shared. From data to data clustering, from deconstruction to reconstruction, from multi-dimension to shared trinity, they not only promote data flow, establish data connection, but also discover and recreate data value. ← 27 | 28 →
From data to data clustering is the starting point for block data. The formation of block data is to put the collected data that is usually in the form of dispersed, isolated, fragmented point data and strip data into a specific platform, that is, via “data clustering” to form the block data. Block data is a multidimensional and infinite variable. Multi-dimension introduces dialectics into the analysis and use of data to form the dialectical thinking of block data; infinity not only represents the huge data quantity of big data, but also reflects the dialectical nature of data in time and space; variables are in the state of unknown, so if we can explore some more fundamental but invisible variables that are not directly perceptible in the multi-variables, and grasp the disturbance factors of the development, the unpredictable may become the predictable that can be given early warning and planning.
The mechanism of block data is the course from deconstruction to reconstruction. Open, shared, connected are the basic mechanism of block data formation. And the open, shared, connected block data will produce a larger block data reticular structure, which is not a simple stacking, but has obvious grids, nodes, skeleton and its own internal logical law. The reason why the existing data should be deconstructed and then reconstructed is that the existing data can generate more value through remixing after deconstruction.
From multi-dimension to sharing is the value presence of block data. In general, the greatest benefit of the big data age is multidimensional and sharing, that is, every person in the age of big data can quickly share the most advanced achievements of human civilization; this kind of multidimensional and sharing is to obtain any information at any time, any place, with anyone, anything, and in any way, that is the charm of sharing. Sharing is the greatest contribution of the big data age to human beings, and what we didn’t know in the past can now know; the information we didn’t have in the past is now available; what a few people had in the past can now be owned by most. And it is the sharing that is becoming a hallmark of a new era.
Block data: Solutions for the big data age
Block data, accompanied by big data, is the solution of the big data age. Big data emphasizes correlation, while block data emphasizes integration; big data emphasizes technical support, while block data emphasizes platform ← 28 | 29 → support; big data emphasizes informationization, while block data emphasizes self-flow; big data emphasizes number-centric, while block data emphasizes people-centered. These are the differences between block data and big data. Block data, as the core value of big data, is the advanced form of big data development, and a high degree of integration in the era of big data.
Block data is the core value of big data. “Economics, political science, sociology and many scientific disciplines in the age of big data all change and develop essentially, to further affect the human beings’ value system, knowledge system and way of life” (Mayer-Schönberger & Cukier 2013). Schoenberg holds that the development of big data is not only to tap the value of data, but more importantly to subvert, innovate and reconstruct the world. Block data combines, integrates and aggregates all kinds of data, to form a shared and open “data pool,” so that data and people can fully interact, correlate and integrate with each other, which deconstructs and reconstructs the relationship between data and people, things and things, to create corresponding solutions for business, society and even government, providing a larger value system – block data value chain for industrial development, public services and government governance. The value chain of block data can uncover a brand-new combination of values that transcend the data itself.
Block data is an advanced form of big data development. It is not a branch of big data, nor a replica of big data, but an advanced form of big data development. If big data appears because of “things,” then block data is created around “people or organizations.” Big data observes and interprets data through human thinking, while block data uses the data thinking to observe and interpret human behavior. Compared with the “4V” features of big data such as large data capacity, wide data types, high commercial value and fast processing speed, the most obvious difference of block data is the upgrade of big data from “4V” to “5V,” which added the feature of multidimensional variable. Multidimensional variables of data changed the traditional perspective of data use and analysis, from the original static and isolated state gradually to the state of motion and connection. Just as “the turning point in mathematics is Descartes’ variable,” the turning point in the big data age is the emergence of multidimensional variables of block data.
Block data is a high-degree integration of big data. Presently, big data applications of human are more of a collection of vast data for particular domain or industry. A series of restricting factors, such as high monopoly, ← 29 | 30 → poor integration ability, difficulty in sharing, low application value and high security risk, seriously hinder the development of big data. It is the significance for block data development to solve the problems of data monotony, data closing and data monopoly. The open, shared, and connected mechanism of block data can realize the high correlated aggregation of data. In addition, block data itself has the characteristics of strong collection, high correlation and high value, which determines that block data can break “data island” and “data monopoly” to solve many difficult problems in the era of big data, and become a new paradigm of data philosophy in the era of remixing.
Data disorder and data governance
The process of block data aggregation includes not only the filling of data space, the reconstruction of spatial data, the configuration of the collection process and the aggregation in the process of configuration, but also the collection of new data and the derivative data from the original combination. By way of aggregating and remixing block data, higher and bigger data value can be exploited. As a result, the security, ownership, order and other issues related to data are becoming more prominent, which requires data governance.
Data security is incomplete. In the process of data opening, data circulation and data application, the problem of data risk is imminent, especially that the weak awareness of risk and security, the poor security and reliability of critical information infrastructure, hacker attacks, data terrorism. Weak technical links and management loopholes, as well as the lack and lag of laws, increase the risk frequency and harm extent. The core of this risk and crisis is subversion, being essential to the “destruction,” which directly leads to the change in structure and function, thus exacerbates its social uncertainty, unpredictability and uncontrollable nature. Behind the high risk of data is the loss of human nature, moral abnormality and behavior irregularity. The governance of data security and the construction of external binding mechanisms, such as data legislation, need to be strengthened from a more systematic framework, like technology, ethics, and legal system and so on.
Data utilization is unbalanced. From the perspective of data control, it refers to the imbalance of data control. Some enterprises hold large amounts ← 30 | 31 → of data, in certain markets, forming a dominant position, which will result in the utilization imbalance. From the data flow perspective, it means “not shared data.” Data sharing is an important issue, involving multi-stakeholder adjustment. “Not shared data” is an important cause of data island and the data gaps. From the perspective of personal information protection, it refers to “control of personal data.” Enterprises collect or share personal information, but do not fulfill their duty to inform or to obtain authorization from individuals; for individuals, enterprises are like black boxes, in which personal information is controlled, “monopolized.” From the perspective of data revenue, it is about “exclusive data earnings.” How data earning is distributed is a highly controversial issue at the moment (Yang Jianhui 2017). From the perspective of data utilization, the government and enterprises have mastered a large amount of data, but because the technology of development and utilization of data is hard to meet the needs, coupled with absence of personal awareness of big data utilization, the uneven and inadequate data utilization becomes unavoidable.
Data rules are incomplete. With the coming of the big data era, there is a growing consensus on the value of data, and data is widely discovered, unsealed and exploited. On the one hand, human beings are delighted to see the value of data; but on the other, too much useless data is presented to the society. In the age of small data with data scarcity, because of the backwardness of technology in data collection and search, human beings can only obtain limited data. It is difficult for individuals to make accurate judgments and predictions of things, which as people in the dark, unable to distinguish the direction. While in the era of hyper-data, data shortages become data surpluses. The explosion of information and data produces a huge amount of information and data waste, so that human beings are surrounded by borderless data, which eventually lead to the lack of cognition. We define this as “data congestion.” In the age of small data, the larger the data is, the more value the data has, while in the hyper-data age, the larger the data is, the smaller the value has. Features of big data, as Viktor Mayer-Schönberger said, such as quantity, value, speed, and so on, will be fatal weaknesses. Borderless data waste can cause cognitive impairment for human beings, and data congestion will be an important problem for future development. As a result, the governance of data congestion will be a major issue in the hyper-data era. ← 31 | 32 →
Based on the data view of block data, the new paradigm of data governance is explored through the integration of data science, life science, social science and intelligence science. This kind of organic integration is not a simple integration, but a people-centered one, which aims to achieve the integration of human beings and technology, technology and institutions, rules and order, and then to achieve a comprehensive remixing of human beings, technology and society, so as to provide solutions for human society to clear cognitive barriers, and balance the interests of conflict.
Data Rights and the Reconstruction of Order
Order is a kind of need rooted in the heart of mankind, and the passion for order result from dependence on it. It is an opportunity to rebuild order with the rise of cyberspace that has brought new challenges to mankind. In the new round of order reform, the power of the Internet is highlighted. Data rights has never played such a vital part in the history of order reconstruction like it does today. The essence of human civilization is the establishment of order, while the construction of cyberspace order has become an important proposition in the digital age; and the claim of data rights promotes the reconstruction of this order.
Order and its needs: The essence of human civilization is the construction of order
From the perspective of jurisprudence, American jurist Bodenheimer holds that order “means that there exists a certain degree of consistency, continuity and certainty in the natural process and social process.”3 In short, order ← 32 | 33 → is the state of association between things. Aristotle wrote in Metaphysics, “All things, including fishes, birds and plants, are ordered together in some way, but not in the same way; and the system is not such that there is no relation between one thing and another; there is a definite connection. Everything is ordered together to one end” (Barnard 1972, p. 2). To put it in the abstract, social order indicates that there is a certain degree of stability, continuity of process, regularity of behavior and security of property and psychology in society (Zhang Wenxian 2011). As Maslow points out, “we may generalize and say that the average adult in our society generally prefers a safe, orderly, predictable, organized world, which he can count, on, and in which unexpected, unmanageable or other dangerous things do not happen” (Bodenheimer 2004, p. 239).
Order is a kind of glue to human society, the existence of order and its realization is an important measure to the degree of social civilization. Throughout the process of the development of human civilization, the construction and pursuit of order is the main line. Order is the key word of ← 33 | 34 → civilization.4 Order functioned as value guidance and civilization ruler (Feng Fanyan 2016), order is the “Big Dipper” of human society, which guides, but does not explicitly interfere with human society, nor does it make clear provisions on the basic structure of human society. It only delineates a possible space for human society, within which human beings can operate only. In ancient society, witchcraft and religion dominated the whole society, thus mental structure of mankind developed with the reverence to the gods and non-competition that made people pay more attention to divine value in the pursuit of value, which was also an important factor to explain why ancient civilization was still full of divinity and enchantment, despite its material scarcity. After the “disenchantment” of modern society, production and competition have become the core of human life, and the pursuit of interests has become the basic logic. That the indevout and competitive mental structure developed by human beings makes people pay more attention to practical value in the pursuit of value. In a sense, ancient civilization and modern civilization seem to be “lame” civilizations, and the biased pursuit to value is the root cause of the problem. In this sense, the order of value is a “barometer” of the social civilization.
In contrast to order, there is out of order or disorder. “When the state of disorder appears, the stability of the relationship disappears, thus the order of the structure is confused, in which the rules of the behavior and the continuity of the process are broken and the occasional and unpredictable factors constantly interfere with people’s social life, therefore the trust between people reduces, leading to increasing insecurity. In order to protect the ← 34 | 35 → normal social order, human beings must take measures to eliminate disorder or prevent its occurrence. In a civilized society, law is the primary and often effective means of serving this end” (Zhang Wenxian 2011, pp. 260–261). But the legal adjustment often lags behind, which mainly manifests in the laggard formation of law, the legal norm and the adjustment mechanism.
Classification of order
There are various structures, arrangements and combinations in nature and human society, which form various orders, each of which has its own specific function and value that profoundly affects the life and production of human beings. Order is divided into (Wen Tingxiao & Liu Xuan 2013) natural order and artificial order,5 real order and virtual order,6 single order and multidimensional order,7 simple order and mixed order,8 explicit order ← 35 | 36 → and implicit order,9 general order and specific order,10 fixed order and variable order,11 initial order and derivative order,12 physical order, rational order and digital order.13
In different historical stages of human society, the requirement to order is different. The order model of farming society is a kind of natural order, ← 36 | 37 → and the simplicity of farming civilization makes all human activities have high certainty that characterizes a kind of static feature, at which time the “natural order” also shows high certainty. After human beings entered the industrialized society, the degree of social complexity increased gradually, and the natural order became unable to adapt to the needs of human production and life. In the late twentieth century, human society began to step into the historical process of post-industrialization, which was accompanied by the rapid growth in the complexity and uncertainty of human society, which posed a challenge to the creation of order. It took only hundreds of years for the industrial society to rapidly promote the complexity of society, pushing society into a highly complex era. Nevertheless, the existing orders and rules faced the dilemma of failure. In the historical coordinates, we can clearly see that the development from farming society to the industrial society presents a complicated process that breaks the natural order of the farming society and puts forward the requirement of rebuilding the order. While in the digital society, with the exponential growth of social complexity, human beings need a new order under the condition of high complexity and uncertainty. A change is needed to build an order that can be adapted to highly complex and uncertain conditions. The historical process of the human development, since the time of separation from live the life of a savage and the era of chaos and ignorance, has evolved in an orderly manner along the spiral from low-level to advanced, from simple to complex, which reflects an inherent “progressive” order.
The creation of order is closely related to the awareness of rights. In the process of industrialization, citizens’ awareness of rights is gradually awakened, and the demand for gains of property right and general human rights constantly strengthens the creation of order. The existence of a certain social order is a prerequisite for human activities. In a sense, the creation of rules is the premise of all social activities. When the rules of creation can sustain social development and effectively regulate human behavior, the order of creation of this society is good. Once the creation of rules is not sufficient to sustain social order or regulate human behavior, the creation of order would be seriously challenged. Post-industrialization presents the challenge to this creation of order, making it helpless in the face of the essential requirements of public life, and extremely rigid in the face of the rapidly changing society (Zhang Kangzhi & Zhang Qianyou 2010). ← 37 | 38 →
Order demand is the bottleneck demand of mankind
Order is the demand rooted in the heart of mankind. The social biological characteristics of human beings determine that the survival of human beings must process three basic demands, that is, the material goods to meet the biological instinct, the order of rules to maintain the social framework and the meaning construction to perceive the living value. Among them, the demand for the elements of social order is the main content of the whole demand of order. Practice has proved that because “disorder means the existence of fragmentation (or discontinuity) and irregularity, that is, lack of a pattern attainable by our knowledge – manifested in an unpredictable sudden change from one state of affairs to another” (Bodenheimer 2004), order becomes a necessity. The natural yearning for order of human makes people instinctively replace disorder with order; and the main forms of replacement include religious doctrines, moral norms and legal rules. Among them, the compulsion of legal rules is the most complete substitute for disorder and can satisfy the needs of human order. For example, as far as the order in the economic field is concerned, the economic law adjusts it at the macro level, and the contract law and the commercial law regulate the concrete transactions or the market subjects at the micro level; once order anomie occurs, the law is compulsory enough to ensure its continuity.
Order is the need for human beings to live together. Order is decided by various principles, rules and norms formed intentionally or unintentionally by human beings in the practice of production and life, and will change with the changes of various principles, rules and norms. “Therefore, the order of human society must be the historical order, that is, the order in the process of construction, maintenance, deconstruction and reconstruction” (Zhang Shuguang, et al. 2016, p. 130). The pursuit of good order by human beings is the pursuit of “good” way of human life. Human beings seek order “not for the sake of order itself, but for their smooth and peaceful survival and development. Order is only a benign state of orderliness, coordination and sustainability manifested by people’s normal living and development, and thus is the embodiment of people’s values of living ‘a good life.’ So, Human beings regard order as an important goal for pursuit and as a standard of conduct for individuals and their mutual relations” (Zhang Shuguang, et al. 2016). ← 38 | 39 → Human demand for order constitutes the basic settings in which the law can be established and operated.
The demand for order is the internal motivation for human development. In a civilized society, law is the first and most effective means to eliminate or prevent disorder (Zhang Wenxian 2011). In the current legislative system of China, big data is in the gray zone of law and supervision, and there are more and more disputes and cases concerning data. These problems stem from the weakness of the legal theory on data rights, especially the lack of dynamic interpretation of the background, the systematic construction of the theoretical system, and the legislative regulation on the order of protection of data rights. Especially with the development of science and technology, the law of data rights protection in our country increasingly shows lagging behind, imperfect and incomplete, so there are difficulties in solving the state of disorder accordingly. Nowadays, the basic problem of food and clothing has been solved. The material and cultural needs are no longer urgent things to meet, but the need for a better life must be satisfied after the demand for order have been basically satisfied. Therefore, the demand for order is the bottleneck one, which is the most urgent demand.
Order Internet and Internet governance
The Internet breaks the limitation of time and space. Virtual space becomes the new space and new field of human life. The boundary between the virtuality and reality is becoming obscured, so does the boundary between data and matter. The virtual world is a unique “living world,” its meaning and order are produced in the relatively independent process, and it constitutes a complete human society together with the real society. The Internet has created a new living space–virtual space, on the basis of which “virtuality” has become a new way of human practice, and virtual order is such a way to measure whether the practice is in order or not.
If the Internet is a highway heading to the future, big data is like a car driving on it, while blockchains are the rules and regulations that allow the cars to run legally and orderly on the highway. The Internet has brought us an irregular, insecure and unstable world, while the application of blockchain technology has made the world more orderly, safer and more stable. With ← 39 | 40 → the support and promotion of blockchains, the development of Internet will complete the evolution from the information Internet to value Internet and then to order Internet. Human beings will enter the stage of order Internet. Whatever orders they are, like the financial order, the social order, and the order of people’s life, the formation of these orders requires further clarification of data rights on the basis of trust and regulation. If we take it that the information Internet solves the problem of unboundedness, the value Internet solves the problem of invaluableness, then the order Internet solves the problem of data disorder.
Information Internet. Chaos theory holds that “the original state of all things is a pile of seemingly unrelated fragments, but when this state of chaos is over, these inorganic fragments will be organically aggregated into a whole.” In the age of the information Internet, massive fragmental information throws the Internet into a state of chaos. In particular, a series of problems, such as invalid information, information overflow and information distortion, which results from obtaining the information freely, would affect people’s access to value information, and increasing the difficulty of information analysis and prediction.
Cyberspace order is the projection, reconstruction and transcendence of the synchronic social order in real social space. As an independent social system, cyberspace has the function of regulating the order itself, but it often fails. Since cyberspace has the features of no center, no boundaries, dispersion, virtuality and high changes, it makes the direction of cyberspace target unclear and alters with the change of time and space. An order pointing to freedom is not necessarily the home of freedom, but alienated into the shackles of freedom (Zheng Yefu 2001). This results in the differences of order governance of cyberspace from the real society. At present, the measures taken by governments to control cyberspace in real space have proved to be ineffective. To some extent, the special order of information Internet has already been in a state of disorder in essence, which adds to the public risk of Internet space.
Value Internet. Blockchain is not only an integration technology, a data revolution, an order reconstruction, but a watershed of time. Blockchain has the ability of transferring trust and value, reconstructing value system and rules of order, and is the cornerstone of constructing value Internet. The White Paper Realizing the Potential of Blockchain issued by the World ← 40 | 41 → Economic Forum points out that blockchain technology can generate unprecedented opportunities to create and trade value in society which will lead to a generational shift in the Internet’s evolution, from an information Internet to a new generation value Internet. From the perspective of social thoughts trends, the sharing development of value Internet is obviously influenced by Out of Control, written by famous sociologist, Kevin Kelly. In his book, Kevin Kelly summarizes evolution in industrial society as evolution based on machine logic, and evolution in information society as evolution based on logic of Bios. Evolution theory based on logic of Bios can be summed up into three words: distribution, decentralization, self-organization. And blockchain is such a true sharing. Sharing is the amplifier of network value and the embodiment of the ultimate value of Internet.
The order Internet. The contractual spirit based on trust is the foundation of order Internet; and trust is the cornerstone and lubricant of network society for the proper operation. Logically, trust and social order can form four types of relations, the fourth type “trust but no order” does not exist in reality; the third type “no trust, no order” means the disorder of social life; the second type “order of trust” is expected to help build a free and prosperous society; the first type is the order in which freedom and prosperous society are sacrificed in the pursuit of order (Zheng Yefu 2001). The blockchain established a low-cost credit mechanism based on technical regulation to realize the reconstruction of order from system to technology. A centralized order does not require a high degree of trust, but a distributed order requires a high degree of trust. Trust is the most important social capital that is a long-term accumulation of ideas, rules, laws, governance, etc. Blockchain helps to build non-personal trust and provide a possibility to evolve a new digital economy and network order. However, trust is not a substitute for supervision. The development of the Internet needs: first, the boundary regulation. The Internet is not an extra-legal space to do whatever a person wants. The healthy development of the Internet requires an orderly market and explicit rules of competition. The freedom of competition and innovation must be bounded by not infringing upon the legitimate rights and interests of others. Second, security regulation. By virtue of its characteristics of decentralization, openness, autonomy, non-tampering with information, and anonymity, the blockchain can solve the network security problems at the technical level, improving the security of network operation. However, it is ← 41 | 42 → far from enough to rely on the technical regulation alone. Construction of a completely credible network environment requires design at the institutional level, especially at the legal level. Third, protection regulation. We must adopt effective technical measures and institutional procedures to re-examine the rules and order on personal data protection, formulate strict personal data protection laws and regulations and supervision system of big data safety.
Information Internet shows people the advantage of the Internet for facilitating communication and reducing information asymmetry; value Internet shows people the potential of blockchain in adding value to material, service and capital, and reconstruct social value system. Order Internet shows people the prospect of innovating social organization, governance system and operation rules by means of technology such as blockchain. Sovereignty and security is the advanced stage of the evolution of Internet from information Internet, to value Internet to order Internet, which is the bottom line to ensure the realization of order Internet. The essence of the order Internet is to maintain the national network security, deal with various non-traditional security threats, and effectively realize the protection for more complex and sensitive data based on national sovereignty and security. Sovereignty is the core and the commanding point of data rights. Only when the data rights are clarified can the data sovereignty really be realized. Therefore, at the time of emphasizing the data sovereignty, better protection of individual data rights of citizens, including data personality rights, data property rights and so on, is the milestone of the arrival of order Internet era (see Figure 2).
Data rights and digital order
Laozi said, “Man follows the earth, the earth follows heaven, heaven follows the way, and the way follows nature.” The Stoic School of Greece also put forward the ethical thought of “living according to nature.” It can be ← 42 | 43 → seen that human beings have their common ideas and rules, and the future development of human beings will depend, to a great extent, on the creation and convergence of the rules of order of mankind. “Nothing can be accomplished without norms or standards.” Mencius said this more than 2,000 years ago, which later became a well-known maxim in China. This shows that Chinese people have long realized that the rules, norms and laws that have been established intentionally or unintentionally in the process of production, life, and survival are of decisive significance to the formation and maintenance of social order.
Order: The foundation of human beings’ common life
Order is the premise of human existence and social development, and the respect of highly regularized behavior can provide order and stability for social life. “History shows that wherever human beings have established political or social organizational units, they have tried to prevent uncontrolled chaos and to establish a form of order suitable for survival. This tendency to establish an orderly model of social life is by no means an arbitrary effort or effort ‘against nature’ made by human beings” (Bodenheimer 2004, p. 228). Human’s need for order is deeply rooted in the entire natural and social structure; and human common life is an important part of this structure. Hayek believes that there is a made order and a grown order in society:
The made order which we have already referred to as an exogenous order or an arrangement may again be described as a construction, an artificial order or, especially where we have to deal with a directed social order, as an organization. The grown order, on the other hand, which we have referred to as a self-generating or endogenous order, is in English most conveniently described as a spontaneous order. (von Hayek 2003, p. 37)
The formation and development of the digital spatial order also exist in, as Hayek calls, the made order and the grown order: “it is just like the free market, the ‘invisible hand’, as Adam Smith says, is the so-called spontaneous order; and the government interferes with the ‘visible hand’, that is artificial order” (Que Tianshu 2014). However, the digital age has a high degree of uncertainty.” For every moment of the day there is a thrilling modern drama, ← 43 | 44 → and the network order is always under threat and destruction from people, consciously or unintentionally” (Wei Guangfeng 2000), which results in the failure, invalidity and disorder of the spontaneous order of the digital space, while as a remedy for spontaneous order failure, the subsequent order has not been constructed or relatively chaotic.
The different stages of the development of human society accordingly need to construct the appropriate order. In Power of the New Digital Order, David Weinberger creatively puts forward three levels of order. He holds that the order of the first level is the physical order – our conventional order, that is, the arrangement of the material world and the things themselves. The second level is rational order, which is based on the order or classification system that we designed in advance, and then the information about things is put into corresponding and fixed positions according to order or classification system. This is an artificial, and virtual order, in which we extract information about the physical world and things themselves according to the need and the pre-designed classification system to arrange and combine in some way. We realize the order of the first level through the order of the second level, and effectively link the two kinds of order together. The third level is digital order, which is a kind of chaos, that is, disorder. Without pre-designed order, beyond the limits of the classification system, it just makes use of rearrangement and combination data to create a particular new order that meets individual needs (Weinberger 2017, p. 4).
Data rights: The core of human common life
The establishment of order is based on data rights. Data empowerment promotes order transformation. Furthermore, the complexity of data empowerment makes order transformation more complex. From data to data rights, this is the inevitable outcome of the digital civilization. The data rights are the greatest realization of value on common divisor of sharing data, including the data right centered on individuals and the data sovereignty centered on countries. We are entering a fresh “era of the right to use” that based on shared concepts. Kevin Kelly, a Silicon Valley thinker, proposed with clarity, “I can pay for them (goods or services), but I won’t possess them … To a certain extent, the right to use became ownership” (Kelly 2012, p. 111). The ← 44 | 45 → same is true to the data, but the limitless use or disposal of data rights will destroy the orderly common life of mankind.
Data rights are the source of internal vitality of digital order. In ancient times, individual interests were always the object of exploitation and suppression, and the small-scale peasant economy could not produce the order concept of “comprehensive and free development of human beings.” In modern times, people began to liberate themselves from backward traditional concepts and rigid dogmatic shackles that negate individual interests. From the perspective of system theory, if the elements of the system, that is, individual thinking, are not active, then the overall consciousness and spiritual vitality of the system will gradually decline. In the two ways in which law regulates social relations (rights and obligations), rights are the corroboration of individual initiative and creativity. Therefore, the life of order comes from rights. Take the phenomenon of queuing to buy tickets as an example, there are about three types: first, the police use sticks to maintain the queuing order. Although the order is good, the personality and dignity of the queuers are beaten away by sticks along with the queue jumpers. Second, an atmosphere and strength between the queuers to reject the jumpers are formed. Not only is the order good, but the queues are all proud. Third, the order is chaotic. Everyone is fighting for strength. Women, the elderly and the weak curse and sigh. There is no doubt that the second type of order is the most ideal one, and its formation is precisely due to the extension of rights and the emergence of a concerted force (Xie Pengcheng 1992). Although this is the daily order in the ethical category, it contains the laws and rules of social governance, in which the claim of rights can lead to order. In the digital age, the data subject’s concern to the data interests is the eternal theme, so the right to advocate and protect the interests is the source of the digital order’s inexhaustible strength.
The rivalry between data rights and digital order. First, the ambiguity of rights versus the certainty of order. The significance of order lies in the elimination of uncertainty, which indicates the realistic data order is identical to actual data order. It is just because the ambiguity of the data rights is in opposition to the certainty of the digital order that it is necessary to legislate on the data rights. Second, the conflict of rights versus the consistency of order. The diversity and conflict of interests determine the diversity and conflict of rights, which are the potential factors to destroy order. If ← 45 | 46 → the conflict between rights surpasses the consistency of rights, order will disappear. The higher the human civilization is, the higher the demand for consistency between rights will be. This consistency in the age of agricultural civilization is only the right to survival, and this consistency in the era of industrial civilization extends to the right to freedom, property rights and other areas. In the age of digital civilization, it is difficult to construct and maintain the digital order if the consistency of data rights required by the times cannot be maintained. Third, the imbalance of rights versus the balance of order. The imbalance of data rights is inevitable in the common life of human beings, and the digital order is essentially the sign that the imbalance can be maintained. Order maintains imbalanced content (that is, the data rights) in the form of balance. If there is no balance, there would have no order, and it is difficult to maintain unbalanced data interests.
Sharing: The future of human common life
Remixing is an inevitable trend. As mentioned earlier, it is the rearrangement and reuse of existing things, which is the integration of internal and external resources to create new value. Remixing has caused unprecedented “destruction” to the traditional concept of property and ownership. In the age of remixing, big computing, big data and big intelligence become the “digital organ” for human understanding of the complex world. The ideological trend of granting rights to data is more active than ever. The real-time flow of data and the sharing of data constitute a digital ecological circle, in which data force and data relation affect social relations. As a result of the mutual influence of this force, the whole social relations of production are branded with the data relations, which will lead to the unprecedented transformation and reconstruction of the social development model, the pattern of benefit distribution and the mode of maintenance of order. The claim of data rights makes the data in chaotic state clear gradually; and it is in here the significance of data rights.
The reconstruction of value and order, as an inevitable requirement of social development, are vital to the establishment of civilized rules and codes of conduct in all society, as well as to the expansion and promotion of the moral and spiritual world, featuring the dual property of “humanity value” ← 46 | 47 → and “social rule.” “Every new order sums up all the original ones, and nothing is omitted. However, the new order has been created, and the behavioral patterns brought about by the new phenomena need to be understood and explained at a new level” (Russell 2004). At present, we are in the midst of an unprecedented era of great change and great transformation. This time, the order transition is like a storm, cleaning up all the old ecology, forming a subversive change to the social existence and development. The claim of data rights is not only the result of the transition of civilization, but a new order for the transformation of human beings from industrial civilization to digital civilization.
Data is a kind of shared resource, and the essence of data rights is sharing right. Following the agricultural and industrial civilization, data right has drove human beings to construct a new form of order – digital order, a new civilized form – digital civilization. Digital order is a shared order, and digital civilization is a shared civilization. Shared civilization has three basic properties: first, shared civilization is a new form rising in the development of human society in the twenty-first century; second, shared civilization is the most dynamic and creative civilization; third, shared civilization is a state of modern social civilization, which takes informationization, intellectualization and digitalization as important symbols, with intelligent large-scale production as the dominant mode of production. Human civilization is essentially a process of integration and development, which is possible to build consensus in the process of integration and to find common values from value collisions. The twenty-first century will be the century of shared civilization, and the trend of sharing is the shared future of the development of human civilization.
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- XXXII, 258
- ISBN (PDF)
- ISBN (ePUB)
- ISBN (MOBI)
- ISBN (Book)
- Open Access
- Publication date
- 2019 (May)
- Data rights Data rights law Data rights system
- Oxford, Bern, Berlin, Bruxelles, New York, Wien, 2019. XXXII, 258 pp., 4 fig. b/w, 6 tables