Abstract: Based on the fundamental right of economic freedom provided for in the Constitution, the statehas the duty to protect users' interests in disposing their data. From the perspective of entitlementunder private law, the Chinese Personal Information Protection Lawprovided for "the right to personalinformation portability", a new type of private right.However, if the law generally requires allenterprises to undertake the obligation of data portability, it would distort the market competition andhinder innovation, and violate the principle of proportionality. As a result, the provision on this new right does notspecify its subjects and its conditions for implementation. As such, it only has declarative significance andcannot play a substantial protective function. It's necessary to encourage market players to take theresponsibility spontaneously by following the market rules to ensure the free portability of users' data:under the anti-unfair competition law, the acts of users' data porting should be clarified as an exceptionto the protection of the enterprise's data property interests, so as to attract third-parties to intervene as a market forceand resolve the technological power disparity between users and platforms; and to makeup for the limitations of antitrust enforcement, it's necessary to establish the ex ante regulation systemin the digital market, so as to force "gatekeepers" to establish a data interoperable environment with thirdpartiesand provide users with continuous and real-time data portability services.

Keywords: data lock-in; right to data portability; anti-unfair competition; antitrust; market regulation

Author:Zhang Haoran, assistant research fellow, CASS Institute of Law; research fellow, CASS Center for Intellectual Property Studies.

Source: 7 (2022) Intellectual Property.