ASIA-PACIFIC Trends and Developments Contributed by: Zhenming Guan, Joint-Win Partners
Comparing Data Property Rights and Credit Reporting Systems in Asia-Pacific Countries Since the emergence of digital economy, technologies such as the internet, big data and AI have undergone innovation at an increasingly faster pace and been integrated in various fields of economic and social development at a deeper level. As an important part of the social credit system, the credit reporting industry is playing a key role in the development of the digital economy. This article focuses on the data property rights and credit reporting systems in Asia-Pacific countries, explores the construction of the data infra- structure system in the credit reporting industry, and – by analysing current challenges – discusses China’s development path under the guidance of Twenty Arti- cles on Data . Challenges in building a data infrastructure system in the credit reporting industry The construction of the data infrastructure system in the credit reporting industry is facing multiple chal- lenges. At the macro level, the construction of the data property rights system is fairly incompatible with the traditional legal framework. The non-material aspect of data leads to a lack of exclusivity and raw data is difficult to incorporate into the IP protection system, owing to a lack of originality. At the micro level, credit data involves multiple parties, with complex owner- ship of rights and a lack of clear rules for profit dis- tribution, which severely hinders data flow and value realisation. In terms of application, data has both personal and property attributes. As such, it is necessary to co- ordinate data flow and privacy protection under regu- latory frameworks such as the Personal Information Protection Law, which poses tough challenges to institutional design. Data credit rights and credit reporting legal framework in Asia-Pacific countries In the Asia-Pacific region, different countries have formed different data credit rights and credit reporting legal frameworks, each with their own characteristics. Japan adopts the compromise mode in the govern- ance of cross-border data flow. Japan’s Personal Information Protection Law has been revised several
times, providing a fundamental legal framework for cross-border data flow. Japan has decided upon the quadruple compliance channels of “obtaining the con- sent of data subjects as the principle and three statu- tory exemptions as exceptions” and has decided to join international systems and agreements such as Asia-Pacific Economic Cooperation (APEC) Cross- Border Privacy Rules (CBPR) system to stimulate cross-border data flow. South Korea has developed the “Three Laws for Data” system, comprising the Personal Information Protec- tion Law, the Information and Communication Net- work Utilisation and Information Protection Law and the Credit Information Utilisation and Protection Law. Significant amendments to these laws in 2020 intro- duced the concept of “pseudonymous information” to identify the “grey zone” between personal information and anonymous information. Among the key concepts enabled by these laws, the most featured is the “MyData” mode. This explicitly stipulates that information subjects have the right to download their personal information from financial institutions or enterprises directly or to demand that data processing agencies make their personal infor- mation available to third parties – meaning that infor- mation subjects retain the decision-making power when it comes to their own data. How China’s Twenty Articles on Data compares with the Japanese and South Korean modes China’s Twenty Articles on Data creatively proposed a structural separation system for data property rights by establishing the “three-right separation” property rights framework – comprising data resource hold- ing rights, data processing and use rights, and data product operation rights – for the purpose of resolv- ing the data property rights dilemma by downplaying traditional ownership and instead focusing on the data use rights and their potential for circulation. In terms of the construction of the credit system in the data factor market, suggested mechanisms include incen- tives for trustworthiness, penalties for dishonesty, and improving the recognition of dishonest behaviour in data transactions.
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