The rise of data property rights in China: how does it compare with the EU data act and what does it mean for digital trade with China?

Abstract

In 2022, China introduced a landmark Data Property Rights System, followed by implementation rules in 2023 and 2024. Concurrently, the EU enacted the groundbreaking Data Act. While both systems oppose granting exclusive data access rights, they differ in their approaches: China establishes new property rights for data processors, while the EU imposes obligations on them. By comparing China’s Data Property Rights System with the EU Data Act, this paper aims to elucidate the background, contents, and challenges of the Data Property Rights System in the context of digital trade. It argues that China will address the dilemmas of security risks versus data commercialization by implementing a national negative list for data outflows, qualified by green channels in selected industries. It urges China to adopt a more consistent national approach in implementing Data Intellectual Property Rights, resolve the classification and non-discrimination treatment issues in international trade, and draw lessons from the EU sui generis right. It also suggests that focusing on sharing non-personal data under the China Data Property Right System and the EU Data Act may reshape our understanding of governing non-personal data flows and non-consumer users of data products in Free Trade Agreements.