Research On Anti-Unfair Competition Law Of Data Capture Behavior

Data is an important factor of production and competition in today’s social life.In order to gain competitive advantages,data operators have taken various measures to grab data resources,some by operating their own software products to attract users to obtain data,some by using data capture means to grab the existing data on the network.The former tends to be costly and time-consuming,while the latter is low-cost and can capture large amounts of data in a short period of time.Capturing data on the network by technical means has become the main way for major data operators to obtain data resources in recent years.This makes the unfair competition disputes arising from data fetching behavior emerge in an endless stream.In the face of such an efficient way of data acquisition and utilization,it is necessary to analyze and standardize the data capture behavior,and put the data capture behavior into a "legal cage" to maintain the healthy development of the data market..In the current legal norms of Our country,there is a blank state in terms of regulating the behavior of data grabbing.Even article 12 of the Anti-Unfair Competition Law,which is known as the "Special article of the Internet",does not explicitly involve the standardization of the behavior of data grabbing.Until the promulgation of "Data Security Law",the regulation of data capture behavior has some legal basis.Article 32 of the Data Security Law stipulates that "any organization or individual shall collect data in lawful and proper ways,and shall not steal or obtain data in other illegal ways".This article provides basic provisions for data collection behavior,but does not define "legitimate and legal means of data collection",which cannot effectively provide guidance for "standardizing data capture behavior" and "ensuring orderly and free flow of data elements" in practice.For more detailed data fetching behavior adjustment,August 17,2021,state administration of market supervision and management of published about "banned network ACTS of unfair competition regulation(public draft)",the prescriptions in article 20 of the draft "an operator shall not use of technical means,illegally fetching data,the use of other business operators,And other business operators to provide legal network the main content of the product or service or replacement parts constitute a substantial,increase the operating costs of other business operators or unreasonable,detract from other operators and the security of user data,interfere with or damage other operators provided legal network normal operation of the product or service." The "material substitution" in the article can provide a judgment standard for whether the data fetching behavior constitutes unfair competition.However,issues such as the determination of competition relationship and compensation for damages have not been involved,and the provision is only for soliciting opinions,so it will take some time for the specific provisions to be determined.In academic circles,there have been discussions on the normative path of data capture,mainly in the field of civil law,intellectual property law and competition law.Civil law and intellectual property law,as rights law,emphasize the empowerment of data,while competition law,as behavior regulation law,emphasizes the regulation and adjustment of specific behaviors of actors.In this paper,the above specification for data capture theory in the field of comparison,concludes that the civil law and intellectual property law basis of legislation and judicial practice is still not enough to conduct a comprehensive protection for data,and to only behavior regulation paradigm as the core of the competition law can be effective protection of rights and interests of operators of data,and to effectively regulate data fetching behavior.The regulation of data capture by competition law is conducive to the realization of the purpose of balancing the interests of competitors,consumers and social public,and to create a fair,free and honest data market environment.However,as mentioned above,China’s current Anti-Unfair Competition Law does not have specific provisions to adjust data capture behavior.In judicial practice,the article 2 of the Anti-Unfair Competition Law,namely the principle clause,is generally used to adjust the data capture behavior,which leads to the fuzzy judgment rules of the data capture unfair competition cases,and the court’s discretion is expanded in the trial of such cases,and the general provisions are generally applied.At present,it is urgent to clarify the applicable conditions of the general provisions of the Anti-Unfair Competition Law to regulate the data grabbing behavior,so that judges can reasonably and accurately apply the general provisions to regulate the data grabbing behavior in judicial practice,so as to improve the efficiency of data circulation and promote the construction and development of data economy.In addition,while summing up China’s judicial practice experience,we should learn from the experience of the European Union and the United States,and set up a practical normative system to fill the legal gaps when the legislation is ripe.