論數據獲取型不正當競爭事例的規範構成

On the Normative Formulation of Unfair Competition Clauses on Data Acquisition

數據獲取行為的正當性判斷標準模糊，現有研究不充分，全球其他法域沒有提供成熟的類型化方案。當前司法實踐中，數據獲取正當性判斷的因素過於情景化，三重利益評估模式不能提供合理預期，影響到數據產業和數據要素市場的發展。立法者提出的方案尚不成熟，需要完善。數據獲取的行為規制模式具有確權效果，且行為規制模式與權益保護模式在禁止權設定及範圍方面並無根本差別，都以市場失靈理論作為基礎。應當汲取權益保護模式中的教益，知識產權制度激勵以知識產品的適格性和知識產品供應市場的失靈為條件。以數據集合的可保護性和數據製作加工市場的失靈為邏輯起點，可以確立以“數據集合的權益”“數據集合的技術措施”“獲取使用行為的實質替代效果”為行為保護模式的規範構成。用戶同意、公開數據、數據安全、服務器負擔等因素均不能作為數據獲取型不正當競爭條款的構成。

The standard for determining the legitimacy of data acquisition is vague, and existing research is insufficient. Other legal jurisdictions around the world have not provided mature typological solutions. In the current judicial practice of Chinese courts, the factors used to determine the legitimacy of data acquisition are too situational, and the triple-interest evaluation model cannot provide reasonable expectations for judicial decisions and business decisions, which in tum affects the development of the data industry and data element markets. The plan proposed by the legislator in the Draft Amendment to the Law against Unfair Competition (Draft for Comments) is still immature and needs to be further improved. The innovation of big data analysis technology and dissemination technology have nearly eradicated the first-mover advantage of data innovation, and the market failure of the data production and processing market has become apparent. The unfair competition clause is a legal intervention mechanism that incentivizes data producers to engage in production, thereby maintaining competitive advantages in data innovation. Therefore, both the behavioral regulation mode and the rights protection mode are essentially aimed at rewarding the investment in data production and processing and correcting the market failure of data production and processing. Theoretically, there is no fundamental difference between the behavioral regulation mode and the rights protection mode in terms of prohibition, both of which are based on the theory of market failure. Based on empirical data, datasets producers in China have had a success rate of over 80% in unfair competition disputes heard by Chinese courts, indicating that the behavioral regulation mode has an effect of rights confirmation. Therefore, the lessons from the rights protection mode should be learned. Commencing with the protectability of datasets and the theory of market failure, the normative formulation for the behavioral regulation mode can be established, incorporating ''the rights of datasets,'' ''the technical measures of datasets,'' and ''the substantial substitution effect of the acquisition behavior. '' The following points need to be emphasized. Firstly, the double difference in the subject matter and nature determines that ''the consent of the personal information subject or the consent of the data source'' is not relevant in the process of fair competition evaluation. The consent of the personal data subject or the consent of the data source is not the production and processing of the dataset, and is not the object of the assessment in the law against unfair competition. Secondly, the data producer is likely to have made substantive production and processing efforts in the formation of public available data, and its protectability cannot be denied simply because the data is public available. The public availability of the dataset is not a criterion for the evaluation of the law against unfair competition. Thirdly, recognizing the technical measures taken by the data producer as the external representation of datasets will leave more freedom for the public to access the datasets, while not significantly increasing the cost for the right holder. The technical measures taken by data producers on datasets shall be used as external representations of datasets that can be protected. In the case of unilateral statements, bilateral agreements, or when the rights holder adopts unreasonably restrictive technical measures, it is permitted for the public to freely access the dataset. Fourthly, factors such as data security and reputation evaluation mentioned in Chinese court judgments have no direct relationship with the failure of the data production market caused by data acquisition, and they are not the damages that need to be remedied in cases of unfair competition.