Unfair Competition Law Regulation Of Web Crawling

The Fifth Plenary Session of the 19 th Party Central Committee proposed building Digital China and accelerating digital development,which has put forward higher requirements for a series of behaviors such as data collection,utilization,storage and trading.The importance of web crawling as an effective way to facilitate data flow is also becoming increasingly clear.Moreover,the issue of anti-unfair competition caused by web crawling has received wide attention all over the world.In China,it has also developed a broad realistic basis and accumulated a large number of judicial cases.However,as a kind of unilateral non-consensual data crawling,web crawling is easily determined as unfair competition in judicial practice and jurisprudence,and its important value of promoting data flow is often overlooked.In order to have a more comprehensive understanding of web crawling and further improve the regulation of web crawling from the perspective of anti-unfair competition,this paper,starting from the perspective of China’s judicial practice and combining a large number of cases,analyzes and reflects on the usual ideas of determining that web crawling constitutes unfair competition in China,distills the common features in China’s current judicial practice,and concludes that China’s judicial practice has problems that make it difficult to respond to the needs of the era of data circulation and cannot accurately determine the unfairness of web crawling behavior.By drawing on the useful experience of the regulation of web crawling behavior in the United States,Japan,and the European Union,going beyond the endless arguments over data ownership,valuing the beneficial value of web crawling behavior in promoting data circulation,and drawing on the advantages of differentiating between types of crawling objects,this paper proposes to re-examine web crawling behavior from the perspective of a competitive efficiency view.According to the classification of crawling objects,the behavior of web crawling is simplified into three modes: crawling public original data,crawling non-public original data and crawling data results.The illegitimacy of the three modes is judged respectively,that is,crawling public original data does not constitute unfair competition in principle,crawling non-public original data constitutes unfair competition in principle,crawling data results constitute unfair competition.This paper takes the view of competitive efficiency as the fundamental guide and the distinction of crawling objects as the way of determination,which helps delineate the boundary of unfair competition of web crawling and promotes the improvement of competitive efficiency in the data market.