Data Capture Constitutes The Determination Of Unfair Competition

With the development of digital economy,the economic value of data is increasingly prominent,and the problem of unfair competition surrounding data capture and data use is also increasingly prominent.However,due to the ambiguity of rules and the lag of rule making compared with the development of practice,there is no unified understanding on the circumstances under which data capture,use and other related behaviors will be deemed as unfair competition.In this paper,data capture as a more specific link for the entry point,from the following aspects of data capture constitute unfair competition is discussed.First of all,starting from the background of digital economy,this paper explains the significance of data for the development of today's industry and the motivation of enterprises to capture data.On this basis,this paper defines the concepts of data and data capture.Data is defined as the presentation form of information,including personal data and non-personal data,but at the same time,the scope of discussion is limited,that is,the discussion of the data in this paper does not include government data.In this paper,the forms of data capture include open platform dataset download,open application programming interface(open API)acquisition and web crawler crawling.Secondly,this paper sorts out the status quo of data capture involving unfair competition.At the rule level,this paper analyzes the limitations of the typed provisions of the anti-unfair competition law and the limitations of Internet special provision on data capture,and then believes that it is still necessary to use the general provisions of the anti-unfair competition law to judge the legitimacy of data capture behavior.The core of this provision is the refinement of business ethics.At the judicial level,it is illustrated from the case that there are different judgment standards and scales for whether a specific behavior violates the recognized business ethics in judicial practice.Therefore,it is urgent to have a consensus judgment frame so that similar issues can be dealt with uniformly.Thirdly,this paper expounds the idea of business ethics identification in data capture behavior.This paper believes that the procedural analysis framework should be used to refine the business ethics,and then the business ethics can be identified from the perspective of interest measurement.From the perspective of procedural analysis framework,this paper demonstrates the deficiencies of the element construction method and the specific case listing method,and then discusses the rationality of the construction of procedural analysis framework,which is also the proposition of this paper.Based on the procedural analysis framework,this paper further discusses how to implement the procedural analysis framework from the perspective of interest measurement.Finally,this paper argues that whether data capture constitutes unfair competition is not composed of closed elements,but is an open and comprehensive consideration of specific factors.Among the various elements,this paper considers that industry practices,practice norms and self-discipline conventions,technical factors and the impact on the competition order are four important elements to discuss whether data capture constitutes unfair competition.Of course,in specific cases,the parties can also prove that other elements are sufficient to cause data capture behavior to constitute unfair competition.