Research | How does law protect the "blockchain"?

The narrow block chain is a kind of chain data structure that combines data blocks in a sequential manner in a chronological order, and it is a cryptographically guaranteed non-tamperable and unforgeable distributed ledger.

We believe that the ledger here can be understood as a database, a collection of data stored in a certain way.

For traditional databases, the legal protection methods mainly include protection on intellectual property law and protection on unfair competition law.

The first half of Article 14 of the Copyright Law states: "Compilation of certain works, fragments of works or data or other materials that do not constitute the work, and the selection or arrangement of their content reflects the originality of the work, which is a compiled work, and its copyright is owned by the assembler. Enjoy. "According to this provision, authors are authorised by law for databases with originality.

The shortcomings of the protection model of the database intellectual property law are mainly reflected in the fact that the law only protects the structure of the database and does not protect the data itself. At the same time, there are certain difficulties in the determination of originality.

For those databases that are not original, anti-unfair competition law can provide some protection.

It is generally believed that unauthorized use of a database made by others to make a profit may constitute unfair competition. For example, in (2010) Chaominchuzi No. 23542, the court held that if a large amount of manpower and material resources are required to form relevant data information, and the data information has practicality and can bring economic benefits, the data information can be As a result of business, it is protected by anti-unfair competition law.

The emergence of the blockchain has brought new challenges to the current database protection legal system. This challenge mainly comes from the fact that the blockchain is decentralized (only for the public chain). Decentralization means that each node is Blockchain enjoys rights, but when the blockchain is infringed, there is no copyright owner or operator who can claim rights in accordance with the Copyright Law or the Anti-Unfair Competition Law.

In this case, it seems more reasonable to first expect public law to protect the blockchain, such as convicting and penalizing those who undermine the blockchain system for damaging computer information systems, but whether damaging the blockchain system is in line with the crime of damaging computer information systems The constituent elements need further research.

In addition, you can consider protecting the blockchain from protecting the data stored on the blockchain.

Although the data itself is neither the object of rights nor the property, ② the information carried by the data and related data activities may have personality attributes or property attributes. Article 111 of the General Principles of the Civil Law states: "The personal information of natural persons is protected by law. Any organization or individual who needs to obtain the personal information of others shall obtain and ensure the security of the information in accordance with the law. You must not illegally trade, provide or disclose the personal information of others. "Article 127 of the law stipulates that if the law has provisions on the protection of data and network virtual property, such provisions shall be followed. The above two laws have reserved a certain space for the legal protection of the blockchain.

Chicago School theoretical flag-bearer Judge Eastbrook pointed out in his famous book "The Law of Cyberspace and Horses" that the so-called cyber law is not fundamentally different from the law of "horses"-nothing more than traditional property, contract and tort law in the new With the extension of the field, the cost-benefit calculation of law and economics can cut and deal with all network legal problems without any hindrance. It only requires three things: refining general rules and creating property rights. Invisible Hand "to complete ③.

Drawing on this point of view, for legal issues in the blockchain field or the "blockchain law", what is urgently needed is to create property rights where there are no property rights, establish clearer and clearer rules, and promote the formation of transaction mechanisms.

[①] China Blockchain Technology and Industry Development Forum: "China Blockchain Technology and Application Development White Paper (2016)", page 5 and below.

[②] See Mei Xiaying: "The Legal Attributes of Data and Its Position in Civil Law", China Social Sciences, No. 9, 2016, p. 167 and below.

[③] Frank H. Easterbrook, "Cyberspace and the Law of the Horse", University of Chicago Legal Forum, Volume 1996, Issue 1 Article 7. Quoted from Yu Chengfeng: "From the Law of the Horse to the Law of the Black Box", in "Reading 》 2019 Issue 3, page 18.