On Justification of Intellectual Property Protection of Commercial Data: Academic Interpretation and Regular Shaping from the Perspective of Locke's \"Labour Theory of Property\"

Abstract： As an emerging type of civil rights object， the legitimacy of commercial data property rights protection， the selection of a property rights protection model， and institutional structure are the key concerns in both the academic and practical realms. To address these concerns， it is important to initially base our argument on Locke's \"Labour Theory of Property\"， which includes three fundamental elements： \"common\"， \"labour\"， and \"demand\". The article begins by establishing the justification of the property rights of commercial data by combining the specific forms of the source， generation， and use of commercial data. Building upon this foundation， the article delves into the justification of commercial data intellectual property protection from the immaterial \"common\"， non-mechanical \"labour\"， and non-compulsory \"demand\" aspects presented by Locke's \"Labour Theory of Property\" within the realm of intellectual property. Given the basic characteristics of commercial data， such as its intangible， functional， and social nature， the article rationalizes the basis of the legitimacy of commercial data intellectual property protection. It adopts the three elements of the \"intellectual property labour doctrine\" as the theoretical underpinning and starts shaping the institutional framework for commercial data intellectual property protection regulation. This framework includes three dimensions： right acquisition， right attribution， and right restriction， all within the existing intellectual property system.

Keywords： commercial data; intellectual property; justification; Locke's \"Labour Theory of Property\"

CLC： D 923 " " DC： A " " " " " " " Article： 2096?9783（2024）03?0122?09

1 Introduction

With the rise of the digital economy， the advent of the Data Age has become an unstoppable and inevitable trend for society. Nowadays， data resources， as a new factor of production， have become an important object of trade in business. Data resources are also evolving into a key resource that affects market competition[1]. Even data is influencing and changing the logic of exchange in the operation of modern capital， reconfiguring the value of modern power[2]. On the one hand， in the face of the huge market value of data in commercial transactions， there is a growing call from the theoretical community for the protection of property rights in commercial data[3]. On the other hand， the legislative arrangement of Article 127 of the Civil Code， which places \"data\" and \"virtual property\" side by side in the chapter on \"Civil Rights\"， also provides a legal basis for the protection of property rights in commercial data[4]. However， commercial data has a particular mode of existence and is more complex and conflicting in terms of the configuration of interests. These features have led to a continuing debate on whether commercial data should be protected and what model should be used to do so. Given the immaterial nature of commercial data itself， the adoption of an intellectual property protection model is undoubtedly the most appropriate. There is a certain level of theoretical disagreement at the level of constructing specific rules for the intellectual property protection of commercial data. For example， some scholars support the creation of a new type of intellectual property rights， i.e.， derived data rights， by using derived commercial data as the object within the framework of existing intellectual property rights[5]. However， others propose to extend and supplement the existing intellectual property regime to create a new and improved type of intellectual property rights， i.e.， information property rights[6]. Therefore， it is necessary to start with an analysis of the legitimacy of the protection of property rights in commercial data and a practical debate on the feasibility of a model of intellectual property protection. Based on Locke's \"Labour Theory of Property\" and three elements of property rights， including \"common\"， \"labour\"， and \"demand\"， it analyses the legitimacy of the empowerment of commercial data at the basic theoretical level. In addition， the basic characteristics of commercial data are used to argue for the compatibility of commercial data with intellectual property rights. It provides a basis for the protection of commercial data intellectual property rights to construct a legal protection path that is compatible with the operation practice of commercial data by testing the legitimacy of the commercial data intellectual property protection model.

2 Theoretical Proof of the Protection of Commercial Data Property Rights in the Framework of Locke's \"Labour Theory of Property\"

Scholars often look to foundational natural law ideas to justify rights and define intellectual property as a natural right derived from man's instinct to innovate[7]. Therefore， Locke's \"Labour Theory of Property\" is based on natural rights， and it argues how tangible assets， such as land， can be removed from the state of natural common and become the private property of individuals from the three elements of \"common\"， \"labour\"， and \"demand\". Specifically， \"common\" is a prerequisite for the legitimacy of the property right， \"labour\" is central to the proper transformation of community property into private property， and \"demand\" is the restriction that justifies personal property[8]. Due to historical conditions and social context， Locke only analyzed tangible property such as land; however， this does not mean that his doctrine cannot justify intangible property. The logical structure of his argument for the justification of property rights is undoubtedly of great theoretical value for future generations to test the rationale of privatizing the emerging object. In the last century， as intellectual property regimes became widely established around the world， Locke's ideas were extended by scholars to works， inventions， and other intelligent products and gradually developed into a theoretical consensus[9]. Commercial data， as intangible property similar to intelligent products， is also subject to the test of legitimacy for property protection under Locke's \"Labour Theory of Property\". Therefore， to achieve a complete theoretical explanation of Locke's \"Labour Theory of Property\" in the context of commercial data， it is necessary to develop a theoretical proof of the protection of commercial data property rights based on the essential characteristics of commercial data and the three elements of \"common\"， \"labour\" and \"demand\" respectively.

2.1 Certification of \"Common\" Types of Property Rights： Based on Public Domain Sources of Commercial Data

Locke's \"Labour Theory of Property\" begins with the assumption that \"God gave the world to men in common and gave them a reason to use it for the greatest good of life and convenience\"[10]. This assumption is a prerequisite for transforming the commons into private property through people's labour， which is the question of \"common\" that needs to be discussed. Dehousse divides \"common\" into the positive and negative communities， positive community means that all property is in common and the consent of others is required to take private property from it. Negative community， on the other hand， means that all property is open to all and that anyone can take property from it by certain acts without the consent of others[11]. Locke's argument excludes the positive community and states the view from the standpoint of negative community. The main reason for this is that property rights will be complex to create in the case of a positive community， and only some people can obtain the consent of all co-owners to acquire private property. Based on this state of negative community， people have the right to use and take from the common what others cannot deprive them of， as long as they mix the common with their labour.

Commercial data is derived from raw data in a state of the negative community， which fulfils the preconditions of Locke's \"Labour Theory of Property\" for the privatisation of property. Commercial data is a collection of data that the data operator first collects， aggregates， or trades that has been de-identified and anonymized by means that weaken the identifiability of the original data[12]. In other words， commercial data is born out of raw data， which is collected， processed， and aggregated in such a way that the collection of raw data can gain economic value， and in the process of aggregation layer by layer， the solid personalities or strong identifiers of the raw data itself are removed[13]. These raw data are generally derived from public or non-public personal， corporate， and government data. They are freely accessible to a range of people until they are processed. This raw data， which has not been collected， processed， or aggregated， can be considered a public good based on its non-competitive and non-exclusive nature. It is open to all （or a specific population sector） and also based on the fact that the original data is in a natural state of negative community; whoever finds and uses the actual data first will get the corresponding part without the consent of others.

2.2 Certification of \"Labour\" Types of Property Right： Based on the Complex Process of Generating Commercial Data

\"Labour\" is the central element of Locke's \"Labour Theory of Property\"， which justifies the transformation of negative common property into private property. Locke， while making the first claim that labour was the cause of the \"appropriation of property to private property\"， does not provide a clear explanation of labour. It also includes room for a revised interpretation of the meaning of labour by later generations. But even though modern law has modified Locke's \"Labour Theory of Property\" in the name of equity and justice， it still does not deny the fundamental and prerequisite role of labour in recognising the legitimacy of property rights， and labour remains at the heart of it[14]. Therefore， the proof of the element of \"labour\" remains a crucial component in justifying private property. Hettinger's critique of Locke's theory clarifies the margins of the meaning of labour. He states that joining the labour force is valuable， and such labour confers a property right to that value on that labourer. It grants that labourer a property right only to that part of her increase and not to the whole matter of that product of production[15]. This revised added value theory is more appropriately used to argue for the \"labour\" element in commercial data. Value-added theory is a model of justification based on an institutional structure that \"balances\" labour and economic theories， and it is used to justify intellectual and industrial property rights[15]. The complex process of generating commercial data shows that it comes from raw data， but not out of thin air. Generating， aggregating， processing， and analysing commercial data requires a significant investment of labour capital and technical resources. And technologies and tools are needed to take raw data out of its natural state and make it economically valuable in business. Even if the collection is made by automated technologies such as sensors or web crawlers， it results from filtering， grouping， and aggregation by commercial data operators under certain conditions. The value of the raw data itself is minimal， and it is the substantial labour input and material investment by data operators that turn what would otherwise be fragmented， low-value data into a systematic， high-value collection of data， adding a public good to society. This progress is also well argued by Locke in Two Treatises of Government， where he states that labour increases the value of things and that the increase is due to the labourer， and that this act not only does not harm the rights of others but also benefits them[10]. Accordingly， the data operator should acquire rights to the part of the data that increases in value based on his substantial labour input and material. Indeed， this right does not extend to the original data regarding the theory of added value.

2.3 Certification of \"Demand\" Types of Property Right： Based on the Incremental Use Characteristics of Commercial Data

As an essential consideration in justifying the right to property under Locke's \"Labour Theory of Property\"， \"demand\" is essentially a restriction on the property right. Locke argues that the desire to maintain property rights cannot be justified solely by the demand of the individual （for human nature is always insatiable） but by the satisfaction of the demand of society. To this end， Locke introduced the conditions of \"prohibition of waste\" and \"sufficient reserve\"， i.e.， that the individual takes the property to the extent of his labour and demand while at the same time leaving enough of it， equally good， for others to share. In terms of the process of using commercial data， the dissemination and use of commercial data do not compromise its value and content. It is information and has the characteristics of an incremental benefit of immaterial， intangible property. Even the level of commercial data shareability can directly affect its economic value， and it is generally believed that the higher the data shareability of commercial data， the higher the value of commercial data. It is the immaterial nature of its object that makes commercial data assets stay active with increased use. Still， their value increases with increased use， the higher the social and economic benefits commercial data assets bring[16]. Furthermore， because data operators only have rights to the value-added and do not extend to the raw data itself， there is still a lot of \"good enough and equally good\" raw data left in the public domain for others to exploit commercially. By using commercial data， there isn't a shortage of data resources and its commercial value also increases. In conclusion， it can be argued that commercial data， when used incrementally， can effectively fulfill the restrictive requirements of the \"demand\" element， and it is justified by protecting property rights.

3 The Choice of an Intellectual Property Model for Commercial Data Based on the Intellectual Property Labour Doctrine

In the framework of Locke's \"Labour Theory of Property\"， commercial data can be justified by the three theoretical elements of \"common\"， \"labour\"， and \"demand\"， which confer protection of property rights. However， there has yet to be a consensus in the academic community on a specific model for protecting property rights in commercial data. Some of the more representative views are \"data usufruct\"[17]， \"data industrial property\"[18] and \"data collection limited exclusive rights\"[19]. Based on the nature of commercial data， it can be seen that the \"data industrial property\" and \"data collection limited exclusive rights\" models under the Intellectual Property framework are undoubtedly more operational than the \"data usufruct\" model under the traditional property rights framework. Given this， to achieve a deeper exploration of the legitimacy of intellectual property protection of commercial data at the theoretical level， we should base our analysis on the \"intellectual property labour doctrine\" formed by applying Locke's \"Labour Theory of Property\" in the field of intellectual property. The theoretical interpretation of the \"intellectual property labour doctrine\" is based on the intangible， functional， and social nature of commercial data and the immaterial \"common\"， non-mechanical \"labour\"， and non-compulsory \"demand\" of the intellectual property system.

3.1 The Fit Between the Intangible Nature of Commercial Data and the Immaterial \"Common\" Types of Intellectual Property

The \"intangibility\" of commercial data itself coincides with the object property of intellectual property rights， which makes the subject's enjoyment and utilisation of commercial data present an immaterial \"common\" form and provides a corresponding theoretical basis for the inclusion of commercial data into the intellectual property rights system to be protected. In particular， business data is several eligible pieces of data based on specific rules and the order of the data collection formed by the arrangement， which is essentially a collection of information. The relationship between data and information is one of content and presentation. In this case， information is the content， the knowledge， while data is the form， the vehicle that expresses the range of the information. Information is to data what the idea is to work; even if the external manifestation is concrete， it cannot be appropriated and used by anyone in a tangible and controlled manner.

Furthermore， the immateriality of commercial data， which does not possess physical control， is also reflected in its shared nature， which can be used by many people simultaneously. The intangible nature of commercial data makes it easy to reproduce and disseminate so that it can be used by different subjects simultaneously in the same space and time or repeatedly by the same subject in different spaces and times. Based on the shared nature of commercial data， a system is needed to control the illegal dissemination and use of commercial data， enabling the producer of commercial data to have the right to prohibit the unauthorised use of commercial data by others. If not restricted by law， it would result in the legitimate interests of the producers of commercial data being undermined. In turn， to safeguard the results of their investment， producers of commercial data need to take various technical measures to prevent its illegal disclosure and illegal access by others， which will not only increase the cost of commercial data transactions but also reduce the speed of commercial data circulation. Intellectual property creates a system of \"enforced scarcity\" to restrict the dissemination of intellectual output based on the non-exclusive nature of its object to protect the interests of rights holders， just as is needed to protect the legitimate rights of commercial data producers today[20]. At the same time， commercial data is also characterised by its non-depleting nature of use， which aligns with the immaterial \"common\" requirement of intellectual property. No tangible damage occurs during the dissemination and use of commercial data， much less a factual disposition that results in the loss of commercial data and the legal essence of tangible delivery. The use of commercial data is based on the knowledge of its content to exploit its value， but this use does not deplete it in any way. Meanwhile， the intangible nature of commercial data also prevents it from being destroyed or used in its physical form， as the content of commercial data does not change or disappear， and its carrier is infinitely reproducible. Therefore， given the similar non-depletion characteristics of commercial data and intelligent products， the legal protection of commercial data as opposed to traditional property rights using special intellectual property protection rules is undoubtedly theoretically justified.

3.2 The Fit Between the Functionality of Commercial Data and the Non-Mechanical \"Labour\" Types of Intellectual Property

The object of protection and the source of value of business data is the expression of the creativity of business data， which satisfies the encouragement and promotion of originality required by the non-mechanical element of \"labour\" within the framework of the \"labour doctrine of intellectual property\".

Admittedly， the relationship between the level of creativity and the protection of intelligent products is crucial in determining whether commercial data is protected as an intellectual product. However， in theoretical arguments for intellectual property protection of commercial data， the creative requirements of the non-mechanical \"labour\" element of the \"Intellectual Property Labour Doctrine\" have usually been cited as preventing commercial data from becoming an intellectual property object. This is because commercial data is less recognisable than traditional intellectual output in terms of its creativity and novelty， and it is less likely to be effectively detected and protected by timely and effective remedies when unlawfully used[21]. However， from a doctrinal point of view， although the fundamental reason for intellectual property rights to be protected by law lies in their creativity， for different types of intelligent products， the manifestation of their creativity is not the same， and there is also a difference in the law's requirements for their creativity. Generally speaking， the highest level of inventiveness is needed for a patented invention， the second highest for a work of authorship， and the only level of inventiveness required for a trade mark is readily distinguishable[22].

It follows that the level of creativity does not limit the protection of intelligent products. In terms of generating commercial data， its operators crawl and collect data in the online environment through specific technologies and process it according to certain rules and techniques to form commercial data. Processing raw data is only an abstract algorithm and collection of data operating on a machine; it is difficult to satisfy the high inventiveness required for patent protection[12]. However， intelligent products， as objects of intellectual property， should be protected as long as they are groundbreaking and innovative compared to what humans already know and create a specific value. Commercial data is not covered by raw， unstructured data in its \"natural state\" but by a collection of data that various technologies have processed. In particular， deeply processed \"derived commercial data\"， which is quantitatively and qualitatively different from the original data in the public domain， should be protected by intellectual property rights. The value of commercial data distinguishes it from general low-quality data， making it a resource up for grabs in commercial competition in the digital economy. And it is this particular value that expresses the creativity of commercial data. Thus， the level of creativity only affects the value of commercial data and does not affect commercial data protection. The law's provision for creativity is primarily motivated by the belief that intellectual property law should encourage creativity and that the traditional intellectual property system has also been centred on fostering creativity limiting protection to the fruits of intellectual creativity. However， as practice and theory have progressed， the institutional value orientation of encouraging creativity has come under some criticism， mainly because the concept of encouraging creativity needs to explain better the specific rules of the Intellectual Property Law. This is because the scope of modern intellectual property protection extends to commercial mark rights and even to non-creative intellectual output， for example， in the law， where the acquisition of a neighbouring right does not require proof of the inventiveness of the object[23]. Therefore， it can be argued that creativity is not necessary for legally granting legal rights to intelligent products and that the legitimacy of intellectual property rights in commercial data is not necessarily based exclusively on the technical creativity requirement of non-mechanical \"labour\".

3.3 The Fit Between the Social Nature of Commercial Data and the Non-Compulsory \"Demand\" Types of Intellectual Property

Commercial data is generated from the original data retained in open cyberspace. Its data， with the nature of information， is naturally circulating and shared. These characteristics coincide with the social nature of the \"demand\" element of the legitimacy of intellectual property rights.

Specifically， business data is based on exploiting raw data， which has yet to be processed or simplified and is stored in user databases or by end-users. It can be argued that raw data is the carrier of information retained by network users in the network environment. It should be in the public domain of society before it is processed， and it should be free-flowing. However， based on the contribution of commercial data producers， we believe that data owners should be given certain rights to prohibit unauthorised benefits to others in order to guarantee a return on their investment. It has to be acknowledged that licencing can lead to excessive privatisation of commercial data， which allows private rights to invade the public domain and give rise to information monopolies in conflict with the social nature of commercial data[6]. Therefore， many scholars advocate granting relative property rights and limited protection to commercial data， limiting both the scope of protection and rights to achieve the institutional goal of compliance and adequate circulation. A restrictive regime guided by the non-compulsory \"need\" for intellectual property rights can achieve precisely this effect. Restrictions on intellectual property rights are necessary because intelligent products often originate from new intelligent products created by IPR holders who were in private ownership and are now in common ownership or are still in private ownership; therefore， the law does not allow IPR holders to enjoy an absolute monopoly over the intelligent products they create. As a result， under the \"demand\" element of the \"labour doctrine of intellectual property\"， the relevant legal system has always imposed one or another limitation on intellectual property rights. Apart from the fact that there is no need to give perpetual protection to intellectual property rights holders given the renewal of knowledge and the development of society as a whole， i.e.， the need for efficiency， the deeper reason lies in the social nature of intelligent products[24]. Guided by such a theory， the need for legal protection of commercial data to facilitate transactions and the flow of data， and the need to devise regimes to limit their rights to satisfy the essential requirement of dissemination of information in the public domain to achieve a balance between information sharing and sustainable creation. This ensures a sufficient fitness between commercial data intellectual property rights and the \"demand\" limiting element of the \"Intellectual Property Labour Doctrine\" to effectively justify the commercial data intellectual property rights model.

4 The Design of an Intellectual Property Regime for Commercial Data Based on the \"Intellectual Property Labour Doctrine\"

As described above， based on the fit between the intangible， functional， and social nature of commercial data and the immaterial \"common\"， non-mechanical \"labour\"， and non-compulsory \"demand\" of the \"Intellectual Property Labour Doctrine\"， protection under the intellectual property system is currently the most viable approach. However， how to define the scope of commercial data protection， balance the multiple interests of data subjects， and meet the demands of information flow are new issues and challenges that no specific existing intellectual property regime can respond to directly and effectively. Given this， it is necessary to take the three particular elements of the \"Intellectual Property Labour Doctrine\" as a point of departure. Under the existing legal rules on intellectual property， a legal system is constructed to meet the characteristics of commercial data and its protection requirements， starting with the acquisition， attribution， and limitation of rights.

4.1 The Rule Building for the Acquisition of Rights in Commercial Data Guided by the \"Common\" Types of Intellectual Property

The difficulties in obtaining rights to commercial data are manifested in two main areas： （a） the inherently low-identification， fluid， and variable nature of data makes it challenging to define the object of rights in commercial data; （b） the ease of access and disclosure of commercial data makes it difficult to design procedures for the validation of commercial data. Based on the element of \"common\"， the statutory doctrine should be upheld concerning the object of rights in commercial data and the principle of registered acquisition in terms of the procedure for acquiring commercial data.

The emerging technologies of the Internet age have made it much cheaper to create and disseminate information and have also affected people's perceptions of property rights in intelligent products. In this global social networking space， access to international networks and knowledge information is widely perceived as a fundamental social benefit. This strong demand for access to knowledge and information， which has arisen with the advent of the Internet age， has shifted from the traditional \"negative community\" to the \"positive community\" model of common. Everyone has the right to access， use， and collectively own the intellectual commons， and anyone wishing to privatise an abstract or intellectual product in the intellectual commons through labour must obtain the consent of others[25]. This \"positive community\" model choice is based on the influence of the social trend of open-source innovation and knowledge sharing that has emerged in the Internet era. In the case of commercial data， the \"positive community\" element should guide the statutory approach， clarify the object's scope， and strictly limit the intrusion of commercial data objects into the common. Specifically concerning commercial data， simple data resources and data collections that do not have economic value or have not been processed， as well as commercial data that violate laws and regulations and public order and morals， should be excluded from the scope of protection. In other words， only commercial data that meets the criteria of availability， value， and scarcity can be protected by the law， and a mere collection of data does not fall within the scope of protection.

The \"Intellectual Property Labour Doctrine\" is a theoretical extension of Locke's \"Labour Theory of Property\" in intellectual property. Although theoretically structured to accommodate immaterial intelligent products， the direct application of theoretical models based initially on tangible property to intangible objects inevitably needs to be more consistent. Regarding the particular attributes of an intellectual product， it corresponds to an idea rather than a specific kind of tangible object， which makes it not have the same publicity effect when owned by the subject as if it were a tangible object. Judging the creativity of intelligent products is not as simple as \"planting crops on a barren piece of land\"; therefore， the licensing of intelligent products needs to be reviewed and registered. On the one hand， it is the registration that gives publicity to the subject's ownership; on the other hand， it is the examination that determines whether the intelligent product is a \"creation，\" something different from a purely natural state[26]. For commercial data acquisition， there should also be a system of registered acquisition and its review and registration. Judging whether commercial data is eligible for authorization prevents low-quality， public-domain commercial data from being monopolised by private individuals and wasting data resources. Another reason is that commercial data infringement mainly occurs in the online environment. Based on the particular characteristics of network communication， network infringement can be easily carried out by simply using the network. The interactive nature of the internet also allows others to not only passively read or use the infringing subject matter but also to alter and redistribute the infringing content at will， resulting in the rapid expansion of infringing content[27]. Modern internet technology makes it easy to decipher and access private data; therefore， commercial data must go through a registration system to declare where the rights lie. However， adopting a registered access system does not necessarily mean that the content of commercial data must be made public. Unlike traditional intelligent products， once made public， commercial data would make it difficult to control the illegal exploitation of others， and its economic value would be diminished by disclosure. At the same time， commercial data is more likely to generate value from its use as a whole， not from one or part of the raw data. A non-public monopoly on commercial data does not affect society's redevelopment and use of raw data. Therefore， a system of registered access and limited disclosure should be constructed for commercial data， i.e.， only the content covered by the commercial data should be disclosed， but specific data can be retained.

4.2 The Rule Building for the Attribution of Rights to Commercial Data Guided by the \"Labour\" Types of Intellectual Property

The plurality of subjects and the conflicting needs of interests involved in creating commercial data are critical issues in constructing rules for the attribution of rights to commercial data. Based on the \"labour\" element， the rules on the attribution of rights to commercial data should be structured in such a way as to protect investors while taking due account of the interests of the data source.

Regarding the \"labour\" element of Locke's \"Labour Theory of Property\"， the key to the attribution of its rights lies in whose labour has brought the object in the state of community out of its natural state and added a new value. Specifically， in determining the ownership of rights in commercial data， it is essential to clarify who performed the critical labour and whose labour is capable of satisfying the creativity required by the intellectual property legal system. Raw data is generally a digital representation of various information about the activities or operations of people， objects， and organisations， recorded by multiple network systems， sensors， and intelligent devices[28]. This digital manifestation of an objective act is not creative labour， as intellectual property law requires. By its very nature， the person from whom the data originated merely conveys a certain amount of information through their actions. Furthermore， the digitization process is not done by the data source but by the technology embedded in networked systems， sensors， and smart devices. Unlike the generation of raw data， the aggregation， refinement， processing， and summarization of data change the form in which it exists. This transforms data in its raw form into a collection of data with a specific use value and into a digital product that can be traded[29]. The processing of such data is generally undertaken by the enterprise， which， with financial and technical input， has transformed and increased the value of the data from its \"original common state\"， which is the kind of creative work required in the field of intellectual property. Based on the above two stages， the data source does not contribute substantially to generating commercial data in the two stages of commercial data generation. In contrast， companies whose contributions to commercial data qualify as creative labour should enjoy intellectual property rights over the data products generated by their investments. The data source does not have intellectual property rights over its original data at its generation stage. However， for raw data originating from people or organizations， the raw data often contains elements of personality and reflects private information about the individual. This section should be considered in the context of personal data protection and does not concern the attribution of commercial data rights. The basic \"investor-centric\" position should be maintained concerning the attribution of ownership， i.e.， the law should provide that the rights to commercial data belong to the entity that collects， integrates， and holds the data and that it enjoys the corresponding right to prohibit or permit others to access or use the data. At the same time， the defence of the personal interests of the data source should also be taken into account by controlling the rights of the owner of the commercial data and requiring them to assume the obligation to protect the user's privacy.

4.3 The Rule Building for the Limitation of Commercial Data Rights Guided by the \"Demand\" Types of Intellectual Property

The social nature of commercial data makes it a natural public good， and the trend of the information society is to share information. However， information sharing is only relevant if it ensures the sustainability of the development of the information society and guarantees lasting incentives for information creation[6]. The conflict over the empowerment of commercial data lies in the contradiction between the data producers' demand for private rights and the public's demand for information sharing. Therefore， the rights regime for commercial data must be limited in terms of the \"demand\" element of intellectual property rights to balance the relationship between proprietary and shared use.

As a form of information property， commercial data is not unrestricted in its acquisition and use. In terms of the \"demand\" element of the \"Intellectual Property Labour Doctrine\"， the maintenance of legitimate property rights in commercial data also requires the fulfilment of two conditions： \"adequate retention\" and \"prohibition of waste\". In Locke's theory， the public can approach the commons unharmed. This right is magnified in the information society， where the rights of the creator and the rights of the public should be given priority in the event of a conflict[10]. A prerequisite for granting intellectual property rights to commercial data is thus to address the public's right to access data products and to guarantee the public's right to free access to the intellectual commons. To this end， the period of commercial data protection needs to be clarified in the first place. The rapid rate of data development and renewal makes the value of commercial data closely related to its timeliness. The more current its data， the newer and more timely the data acquired， and the greater the value of commercial data assets. Given this， it is not advisable to adopt a more extended period of protection for commercial data under the copyright regime or a renewable period of protection for trade mark rights but rather to establish a shorter period of protection for patent rights. However， the exact length of time will need to be determined by a series of refined calculations. In addition， limited protection of commercial data also requires limitations on the scope of its rights. In short， a fair use system and a compulsory licensing system should be put in place. Access to and use of data by individuals or organizations for non-profit purposes such as learning， research， etc.， as well as the takeover and disclosure of commercial data by the state in specific circumstances in the national interest or the interest of society， are permitted. It is also necessary to establish a mechanism for sharing commercial data in key industries， regulate data transactions， prevent the emergence of monopolistic practices， and ensure the flow and sharing of vital commercial data to promote the healthy development of the information industry.

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商業數據知識產權保護的正當性基礎：

以洛克“財產權勞動學說”為視角的學理闡釋與規則形塑

劉 " 鑫，陳菲羽

（中南財經政法大學 "知識產權研究中心，武漢430073）

摘 " "要：作為新興的民事權利客體類型，商業數據產權保護的正當性，以及產權保護的模式選擇與制度構造是困擾理論界與實務界的關鍵問題。對此，首先應以洛克“財產權勞動學說”的“共有”“勞動”“需求”三個要素為基礎，結合商業數據的來源、產生和使用的具體形態，實現商業數據財產權的正當性證成。在此基礎上，應進一步從“財產權勞動學說”在知識產權領域中所呈現出的非物質性”共有”、 非機械性“勞動”、 非強制性“需求”的理論新解出發，立足商業數據無形性、功能性、社會性的特性，理順商業數據知識產權保護的正當性基礎，并以具象化的“知識產權勞動學說”三要素為理論起點，借助現行知識產權制度框架體系，從權利取得、權利歸屬和權利限制三個維度著手，展開商業數據知識產權保護規范的制度設計。

關鍵詞：商業數據；知識產權；正當性；財產權勞動學說