公共數據權屬：從憲法國家所有到民法國家所有權

State Ownership of Public Data: From the Constitutional Law to the Civil Law

公共數據權屬是構建數據產權制度、發揮數據要素價值的前提性問題。公共數據權屬的認定取決於作為權利客體的公共數據的法律屬性，公共數據具有財產屬性和公共屬性決定了在此基礎上產生的公共數據權益是一種內含利益由全民共享的財產權。《憲法》第12條為公共數據憲法上國家所有提供了規範依據，這意味著法律應為公共數據實現“不可侵犯”和“合理利用”提供制度供給。《民法典》第246條是公共數據憲法上國家所有向民法上國家所有權轉化的通道，公共數據民法上國家所有權決定了公共數據所有權的權利享有主體、權利客體範圍、權利內容和權利行使限制。公共數據國家所有（權）的證成，為公共數據確權提供了理論和規範依據，有助於公共數據流通規則的合理構建，且決定了應以“公共”屬性為基礎建立公共數據收益分配制度。

In light of the vast volume of public data and its potential for significant socioeconomic value, it has emerged as a fundamental production element in the data market, exerting a profound impact on a nation's overall economy and citizens' well-being. The proper recognition of ownership of public data is crucial for establishing a comprehensive data property rights system that fully harnesses the value of data elements. It also serves as a prerequisite for constructing a framework facilitating the circulation and utilization of public data, encompassing aspects such as sharing, openness, and authorized operations. However, given public data's non-competitive and non-exclusive characteristics, disputes regarding its ownership have been contentious in legal theory and practice. Public data possesses unique property and public attributes, which diverges from the enterprise data, establishing that the resulting right is the property right with ''internal benefits shared by the whole people.'' Legally, this proprietary right is manifested as state ownership, explicitly represented as state ownership of public data within the framework of Chinese law. Establishing this ownership not only aids in resolving the ''tragedy of anti-commons'' issue but also safeguards the inherently public nature of public data, preempting potential misuse. As the Constitution of the People's Republic of China regulates the nation's foundational political and economic systems, confirming state ownership of public data must be endorsed by constitutional provisions firstly. In the context of China's Constitution, the open-ended stipulation of ''public property'' in Article 12 can be interpreted to encompass public data, thereby rendering Article 12 a normative basis for the state ownership of public data at the constitutional level. Nevertheless, state ownership at the constitutional level predominantly revolves around programmatic legal confirmation, with specific details necessitating realization through the private law system. Within the provisions of the Civil Code concerning data rights and state ownership, general provisions on state ownership of Article 246 can serve as a channel to convert state ownership of public data at the constitutional law into the civil law. In this context, state ownership is attributed to the State itself, with the exercise of ownership delegated to the State Council. This determination dictates the subjects entitled to the right, the scope of objects, the content of the right, and the limitations on exercising the state ownership of public data. The scope of producers of public data is not the same as the scope of subjects exercising the ownership of public data. The producers of public data include not only state organs and organizations authorized by law to manage public affairs but also other organizations that provide public services, such as operators who supply water, electricity, gas, and public transportation. However, except for state organs such as the State Council, other producers of public data are not entitled to exercise the ownership of public data. When addressing the common challenge of reconciling state ownership and private legitimate rights and interests in public data, it is crucial not to presuppose the inherent primacy of state ownership but to conduct comprehensive assessments. Lastly, clarifying the state-owned (state ownership) of public data holds significant practical value by providing theoretical and normative foundations for confirming ownership of public data while contributing to the rational construction of rules governing public data circulation. Furthermore, it offers a basis of law for establishing a profit distribution system based on public attributes within a true sense of collective entitlement as owners.