Establishing Intellectual Property Rights on Data Through

Categorization

Xuchen Gao

Law School, Minzu University of China, Beijing, 100071, China

Keywords: Data, Intellectual Property, Categorization.

Abstract: Contemporary information network technology is advanced, and various types of data, as an indispensable

element of various industries, have given rise to numerous exclusive disputes. The existing legal system has

limitations on data protection. The current relevant policies only provide guidance on the direction, but do not

provide a structured system or specific laws and regulations. The purpose of this paper is to briefly discuss

the way to establish intellectual property protection for data through categorization, to include data in the

scope of intellectual property protection, and to solve data disputes with the protection rules of intellectual

property law. Among them, categorizing different data based on the way data is accessed and the various

forms of data during its lifecycle are the main views at present. In addition, the degree of publicity of data and

special data are also considered in this paper. By categorizing and setting up rights through the different

characteristics of data, appropriate protection can be provided to various types of data in a targeted manner,

in order to achieve an organic combination of the exclusivity of data due to its property nature and the mobility

of data due to its marginal incremental benefits.

1 INTRODUCTION

1.1 Research Background

Before the publication of specific legal provisions

based on intellectual property rights, the relevant

documents issued in China provided a series of

theoretical and ideological guidance for the

establishment of data property rights. In December

2022, the CPC Central Committee and the State

Council issued the “Opinions on Building a Data-

Based System to Better Utilize the Role of Data

Elements”, which further put forward the “Data

Classification and Rights Setting” and “the

establishment of a reasonable and practical data

property rights system that protects rights and

interests” (Shan, 2023). The ideological and policy

foundations have been laid for legislative activities to

empower intellectual property rights in data property.

Currently, the law system for data security, which

is linked to the further development of data, is a

system of data security regimes guided by the State

Security Law of the People's Republic of China,

Cybersecurity Law of China, the Data Security Law

of the People's Republic of China, and Personal

Information Protection Law of the People's Republic

of China as the main elements (People’s Publishing

House, 2015 … Wu, 2023). However, the specific

legal system to promote the development and

utilization of data has not yet been sound and

complete. On the premise that the basic system

architecture has been basically formed, how to

supplement the specific laws and regulations that are

conducive to protecting data security and stimulating

the creativity of data has become a topic of focus.

1.2 Research Significance and Theme

The current social network technology is

unprecedentedly developed. As a product of network

technology, the importance of data is also

increasingly prominent. According to the

Communique of the Third Plenary Session of the 20th

Central Committee of the Communist Party of China,

Accelerate the establishment of a data property rights

management system that can facilitate the

identification of data ownership, promote market

transactions of data and ensure the protection of data

interests. At the same time, data security governance

and regulatory capabilities need to be upgraded, and

an efficient, convenient and secure mechanism for

Gao, X.

Establishing Intellectual Property Rights on Data Through Categorization.

DOI: 10.5220/0014359200004859

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st International Conference on Politics, Law, and Social Science (ICPLSS 2025), pages 191-196

ISBN: 978-989-758-785-6

191

cross-border data flow needs to be established

(Central Compilation & Translation Press, CCTP,

2024). In the era of network information, the property

attributes and circulation and utilization needs of data

are increasing day by day, and more and more data

disputes have generated expectations for the

allocation of data property rights. Reasonable data

ownership planning helps to coordinate the interest

relationship between data owners, standardize the

data circulation and utilization behavior, so as to

stimulate the creative value of data to a greater extent.

The purpose of this paper is to analyze the current

situation of data protection in China through existing

laws and relevant policies, and to introduce the

necessity of including data into the scope of

intellectual property protection. At the same time, it

discusses the feasibility of incorporating data into

intellectual property rights by classifying different

types of data and solving data disputes with the

protection rules of intellectual property law.

2 CURRENT STATUS OF

RESEARCH ON THE

INCORPORATION OF DATA

INTO INTELLECTUAL

PROPERTY RIGHTS

In terms of the guarantees of private power, the

theoretical possibility of incorporating data into

intellectual property rights remains widely debated.

There are currently two broad propositions.

2.1 Supporting the Incorporation of

Data into Intellectual Property

Systems

Those who support the inclusion of data in the

intellectual property system believes that: data has the

characteristics of non-materiality, non-competition,

non-consumption, innovation, etc., and they are

similar to those of the object that intellectual property

rights protect. Including it into the intellectual

property law system has a legitimate object basis, but

the establishment of intellectual property rights of

data in two different ways (Gao, 2025). One indicates

that the current data as an independent object of

intellectual property rights, still remains in the

justification, path design and other theoretical

discussions. The specific system design for data

object still needs a long time of in-depth research and

prudent judicial empirical evidence. The second is

based on the characteristics of the object of data and

the attribution of its rights, and advocates that the

protection of data should be incorporated into the

information property right or listed as a special right

in the field of intellectual property, that is to say, the

protection of certain special information under the

existing intellectual property system.

2.2 Objecting the Incorporation of

Data into Intellectual Property

Systems

Opposition to the inclusion of data in intellectual

property law is based on two main reasons: first, the

“non-creative” nature of data. Data property is not the

product of human creative labor, so its inclusion in

the scope of objects protected by intellectual property

rights lacks the necessary conditions to be compatible

with it. Second, the “non-exclusive” of data. In the

traditional field of intellectual property rights, the

rights of “proprietary” reflected in the exclusive right,

control and uniqueness of the subject . For data, due

to the development of the current social network,

coupled with the inherent flow of data attributes,

determines the need to set up its exclusive right or

control is still to be considered. At the same time,

based on the marginal incremental benefits of data,

mobility is one of the most important factors to add

its value. Therefore, it is difficult to apply the

principle of uniqueness similar to “one patent for one

invention” in Patent Law of the People's Republic of

China to the field of data (Intellectual Property

Publishing House, 2024).

3 THE NECESSITY OF

ESTABLISHING

INTELLECTUAL PROPERTY

RIGHTS IN DATA

3.1 Inadequacy of Data Protection in

the Existing Judicial System

While the importance of data is increasing, there are

also numerous cases arising from data disputes.

However, at present, a considerable number of data

dispute cases are still focused on the Anti-Unfair

Competition Law. Highly publicized cases include

Dianping v. Baidu, Sina Weibo v. Today's Headlines,

and other cases involving unfair competition in data

portability. The Anti-Unfair Competition Law of the

People's Republic of China, as a kind of behavioral

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regulation law, is more inclined to adopt a kind of

negative ex post facto protection (Law Press China,

2019). In addition, most of the law applies to subjects

with competing interests, thus limiting the strength

and scope of its protection. At the same time, due to

the lack of targeted laws and regulations, the laws and

regulations invoked by judges in adjudicating this

type of cases, and even the measurement of the value

of individual cases, may be biased due to subjective

reasons, and sometimes may even lead to different

judgments in the same type of cases.

3.2 Advantages of the Intellectual

Property System for Data

Protection

In addition to the shortcomings of existing laws,

intellectual property law has natural advantages for

the protection of data. For example, intellectual

property law can clearly define the owner of the rights

to data. In the copyright law of China, for data objects

with originality, such as data collection or data works,

it is clear that the creator is the owner of the rights; in

the laws and regulations related to trade secrets, it is

clearly stipulated that the enterprise, as the controller

of the data and the implementer of the confidentiality

measures, is the owner of the rights of data. A clear

attribution of rights can effectively reduce the

ownership disputes arising from the use and

circulation of data. At present, some regions are

carrying out data intellectual property registration

work on a pilot basis, such as Beijing and Shanghai.

The registration system provides data with proof of

ownership, which further strengthens the certainty of

the attribution of rights (Tang, 2024 & Zhang & Deng,

2023). This shows the advantage of intellectual

property rights in clarifying the subject to which the

data belongs.

At the same time, intellectual property law is a

relatively more comprehensive system of legal norms

that is showing a state of expansion. In its existing

field, new systems are constantly being established

and incorporated into the intellectual property legal

system, becoming new members of its encompassing

scope, such as new plant varieties, industrial

copyrights, genes, etc. (Xiao, 2024). Old systems,

such as trade secrets, are also being absorbed. This

shows that intellectual property rights can encompass

a wide range of objects, and of course, can also

provide more targeted protection for different types

of data. For example, data collections, programming

programs and their documentation with originality

can be protected by copyright law. Data that meets the

requirements of “secrecy”, “confidentiality” and

“value” can be protected as trade secrets. This type of

protection prevents data from being stolen,

maliciously acquired, disclosed and used, and can

effectively protect the data assets of an enterprise

with a competitive edge.

4 DETERMINATION OF THE

SCOPE OF PROTECTION

BASED ON THE

CLASSIFICATION OF DATA

Distinguishing between different types of data is an

important prerequisite and basis for determining

whether data can be included in the scope of

intellectual property objects, and it is not appropriate

to generalize between different types of data.

Therefore, it is more appropriate to categorize data to

set rights (Feng, 2024 & Ding, 2023). Classification

is mainly based on the way of data acquisition and the

degree of creativity of human involvement.

Specifically, the existing theories include the

following classifications :

4.1 Raw Data and Derived Data

Data can be categorized into raw data and derived

data according to the source, mode and degree of

processing of the data. Raw data refers to the

unprocessed data obtained directly from the person

being recorded in a legal way, and the most common

raw data are: user login information, data backups left

on the Internet, payment information, etc. Derivative

data is data that can be read after desensitizing,

anonymizing, processing, calculating, aggregating

and other technical treatments of the original data

using technical algorithms based on a specific

purpose. Raw data can come from human behavior,

such as network clicks, inputs, records, etc., or from

devices such as smart cars, mobile wearable devices,

etc., which are automatically generated by machines.

Derivative data usually refers to the data producers to

invest a large amount of labor, capital, and through

data mining, production, processing and other

procedures.

Based on the above classification standards, there

are views in the “trichotomy” based on the refinement

of the “dichotomy”, that is, the derived data is further

subdivided into the data collection and data products,

plus the original raw data to form three types of data.

Among them, the data collection is made from the

raw data. Through classification, organizing and

processing, the data collection is finally formed. Data

Establishing Intellectual Property Rights on Data Through Categorization

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products are the property of enterprises that utilize

algorithmic technology to creatively analyze the data

collection, thereby producing new knowledge and

transforming it into products or services based on a

certain business model.

With regard to the “trichotomy”, some scholars

believe that derived data are basically confused with

data products. The main reason is that derived data

can be recognized as data products formed by

network operators using algorithms or models to

process original data in depth. Therefore, it can be

seen that the “trichotomy” is not clear enough.

However, no matter whether it is the “dichotomy” or

the “trichotomy”, it is not difficult to see that if

property rights protection is set up for data, the

category of raw data should be excluded in the first

place.

First, the object protected by intellectual property

rights is based on its “creativity”. Raw data is mostly

manifested in the collection and organization of data,

and does not have the characteristic of “creativity”.

Secondly, as the initial source of other types of data,

the establishment of property rights protection for raw

data will undoubtedly greatly impede the further

mobility of information, thus reducing the benefits

brought about by marginal incremental benefits.

Finally, data intellectual property rights are intended

to provide a reasonable expectation for creative labor

over and above the cost of labor, so as to stimulate the

main body of the data for in-depth excavation,

processing, innovation and creativity of the

motivation, so the unprocessed data should not be

rewarded. The establishment of intellectual property

rights for derived data should not be generalized, and

should be judged after a comprehensive consideration

of its creation process, data characteristics and other

factors.

4.2 Data Resources, Data Elements and

Data Products

According to the different stages and value forms of

data in the whole life cycle, data can be categorized

into data resources, data elements and data products.

This is a dynamic classification, data in the dynamic

flow and form of evolution shows its value gradually

increasing regularity. Based on the principle of big

data technology, data can only release its multiplier

effect on economic and social development through

massive aggregation and large-scale availability. In

this sense, data resources must remain open, and

should not be set up for its exclusive property rights.

To a certain extent, data resources and data

elements have common features with the raw data

discussed in the previous section, and there is no need

to establish property rights for both of them. In

contrast, data products, different from the derived

data mentioned above, its development and

production of which is highly dependent on

technology and has a greater property value and

product form, and can be regarded as an independent

property object; while the derived data, although

processed by human beings, its degree cannot meet

the requirements of the “product”. In addition, the

two types of data are categorized on different bases.

Derived data is classified according to its source and

the degree of processing, whereas data products are

classified according to the life cycle of the data, or its

position in the production chain. Often, data products

have the attributes of intellectual property and the

basis for setting up intellectual property rights.

Firstly, data products are characterized by their non-

materiality, informativeness, innovativeness and

commercial value, which distinguish them from

tangible objects and raw data. Secondly, data

products are creative achievements, which are the

creative labor results presented in the form of

knowledge. They are created by the developers of

data products through algorithms, numerical power

and other digital technologies. Therefore, data

products meet the characteristics necessary for the

object of intellectual property protection, and at the

same time, their unique asset attributes also require

the establishment of protection measures. Thus, data

products have the highest compatibility with

intellectual property rights.

4.3 Public Data and Non-Public Data

Data can be categorized into public and non-public

data according to whether they are public or not.

Theoretically, in view of the natural mobility of data

and the nature of social resources, open data means

that such data have entered the public domain, and the

public can obtain the right to access and use the data

without authorization and payment of transaction

fees, but not necessarily including access and use for

the purpose of profit.

Compared with public data, non-public data refers

to data that are not disclosed to the society. According

to this attribute, non-public data and intellectual

property objects in the trade secret has a strong

correlation, non-public data if meet the “secret,

confidentiality and commercial value” of the

recognition of the conditions, can be included in the

scope of protection of trade secrets, but also by the

protection of intellectual property law.

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First of all, whether the data satisfy the secrecy

depends on the openness or closure, to a certain

extent, related to the type of data, although the non-

public data has the basic conditions of secrecy, but

whether it constitutes a trade secret, but also need to

be combined with the commercial value of its

confidentiality measures to make a comprehensive

judgment. Secondly, due to the aggregation of data,

relevance, scene dependence, non-competition and

non-exclusivity and other characteristics, the

judiciary lacks a unified standard for the

determination of “confidentiality”, and according to

the practice of the practice, the data access level

restrictions, the use of technical protection measures

are generally regarded as meeting the conditions of

“confidentiality”. The practice is that restrictions on

the level of access to data and the application of

technical protection measures are generally regarded

as fulfilling the conditions of confidentiality. Finally,

as to its commercial value, China's 2017 revised Anti-

Unfair Competition Law of the People's Republic of

China changed the words “can bring economic

benefits to the right holder and has practicality” to

“has commercial value” for trade secrets. Usually,

commercial value refers to the ability to bring real or

potential commercial benefits or competitive

advantages to the right holder. However, in response

to the inclusion of data in the scope of trade secret

protection, it has been pointed out that trade secret

protection is not suitable for the data economy and

that this is “a further strengthening of factual

exclusivity at the legal level”.

4.4 Specific Types of Data

According to the importance of data and the degree of

harm caused by illegal access and utilization, China's

three pillar laws in the field of cyberspace security,

namely, Cybersecurity Law of China, Data Security

Law of the People's Republic of China and Personal

Information Protection Law of the People's Republic

of China, classify data into core data, important data,

and general data, and adopt different rules for the

protection of these categories of data. This category

of data basically manifests itself in the personal or

national security category, such as data that “may

jeopardize national security, economic operation,

social order, and public interests” in the

Cybersecurity Law of China, such as infrastructure

data in the fields of energy, transportation, and so on.

In the Data Security Law of the People's Republic of

China, there are data “related to national security, the

lifeline of the national economy, important people's

livelihoods, and major public interests, such as

national defense science and technology data and

strategic resource reserve data.” This type of data

should not be included in the intellectual property

system because of its special characteristics.

5 CONCLUSION

As can be seen from the above arguments, the

existing protection system for data obviously has

drawbacks. The intellectual property protection

system is more compatible with the object of data,

and it can provide a certain degree of protection to

data whether based on the owner of its rights or the

data itself as an object. With regard to the process of

establishing intellectual property rights for data, it is

necessary to categorize data according to their

different characteristics. The establishment of

intellectual property rights on the basis of the degree

of human intervention, uniqueness and

innovativeness of data can provide protection for the

subject of the rights of the data and maximize the

mobility of the data, so that it can effectively preserve

and increase its value.

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