An Anti-unfair Competition Paradigm For The Protection Of Enterprise Data Interests

Big data technology is the result of technological development in the computer field.With the rise of the data-driven economy and the overall progress of big data technology,big data has brought all-round changes to the economy,society,life,governance,etc.,and opened the era of big data.The arrival of the era of big data has profoundly changed people’s way of life and way of thinking,and also subverted the traditional business model and competition mode of enterprises.For some companies,data has become a fundamental asset like land,human resources,and capital.A large amount of high-quality,real-time data and efficient and innovative data processing will significantly increase the competitive advantage of enterprises.Central policy documents and local legislation on data have begun to subdivide data: personal data,enterprise data,and public data have become different concepts.Although the definition of enterprise data is not clear,the top-level design of the central government and local legislative exploration both point out that enterprise data is different from public data and is the core resource of the data element market.The flow of enterprise data is frequent,and the legal boundaries of related behaviors such as acquisition,use,and defense need to be defined urgently.Building a protection model for enterprise data interests can not only respond to factual needs,but also has a legal basis.The practice of enterprise data interests protection has been relatively rich.In the past ten years,a large number of competition cases have occurred in China and abroad regarding data acquisition,use and setting up data anti-grabbing measures.These data disputes are different from database protection issues in copyright,and reflect the dynamic competition nature of data under the big data economy.The vast majority of data competition disputes in China refer to the general provisions of the Anti-Unfair Competition Law(AUCL)and the general provisions of the Internet-specific articles.The anti-unfair competition law is generally referred to as the "save clause".Compared with the specific competition behavior clauses,it lacks specific constituent elements and its application presents ambiguity and uncertainty.The current state of application of AUCL has attracted the attention of both academic and practical circles.Due to the problem of legislative technology,the Internet-specific provisions have not been effectively applied in the judgment of big data competition disputes and the most applicable clause is also the “save clause”.Scholars have criticized that the general provisions of the Anti-Unfair Competition Law are easy to be abused,which will bring adverse consequences of unstable judgment and insufficient protection and hope to seek a more certain and powerful protection model for big data.In this context,the rights-building model has become the mainstream topic of academic research and the protection model of the anti-unfair competition law of big data has been questioned.Through the "root tracing" of the concept of big data,it can be found that the basis of the rights protection model is the ignorance of the context of big data and the misunderstanding of data attributes.The mainstream view in academia is that "the bigger the big data,the better",“big data contains great value”.On this premise,the incentive for data production is the primary goal of data protection.In fact,the huge volume of big data is a challenge in the application of big data.The value of big data is uncertain,and its value density is generally negatively correlated with the volume of data.The quality attributes such as diversity and real-time nature of big data can bring more obvious benefits to enterprise operation.The dynamic nature of big data and the scenario of data application are the source and breakthrough point of data innovation capability,and are also important factors for the selection of the legal protection mode of big data.After a classification study of rights protection models of enterprise data,it can be known that giving Internet users personal rights or property rights to protect consumer rights not only provides too one-sided protection,but may also bring about adverse effects such as data quality degradation and data innovation obstruction.The construction of enterprise data property rights is not necessarily related to the goal of stimulating data value production.The theory of data rights not only faces the paradox of right confirmation,but also may bring about the problem of data monopoly.The intellectual property protection of data has the problem of inconsistency between data and intellectual property protection concepts and purposes.Intellectual property rights also do not give robust protection to data.Nor does intellectual property theory give sound protection to data.The data rights protection model faces a dilemma that cannot be reconciled and resolved.Through the comparative analysis of big data competition cases,this study finds that the tendency of "rightization" in the adjudication of enterprise data competition cases by Chinese courts is unique and eye-catching.Chinese courts’ persistence in judging whether there is a competitive relationship,preference for commercial investment protection,and stigmatization of "free riders" all reflect the courts’ misunderstanding of the application of the Anti-Unfair Competition Law in data competition disputes——they have deviated from the regulatory path of behavioral regulation.In fact,the protection of big data fits well with the behavioral regulation model of the Anti-Unfair Competition Law.Whether considering the dynamic protection model,the diverse protection interests,or the inclusiveness and pragmatism of the anti-unfair competition law,it can be proved that the anti-unfair competition law can provide reliable,complete and appropriate legal protection for big data.The anti-unfair competition law is a desirable way to protect big data,but the courts need to reshape the concept of legal application and adjust the application model in judicial judgment of data competition cases.The anti-unfair competition law provides defensive protection and its goal of protection is not the legitimate rights and interests of competitors,but the diversified competition order,the interests of consumers and the legitimate interests of competitors.In the adjudication of data competition cases,the proof of the competitive relationship should be discarded,and the behavior rather than the nature of the subject should be concerned;the proof of legitimate rights and interests should be weakened,and behavioral judgment should be the core;there should be a more inclusive attitude towards data imitation innovation;the self-management of the data industry should be respected,and attention should also be paid to distinguishing the legitimacy and rationality of the self-discipline management model,as well as the eligibility of the subject;specific and objective analysis methods should be adopted for competition damage and innovation interests,and economic analysis can be introduced to more accurately define the nature of competitive behavior——for example,the use of discrimination economic theory in the definition of non-public data protection measures can help judges focus on actions and consequences then make more scientific judgments.The application of the anti-unfair competition law,which returns to the essence of behavior law,can provide continuous protection for enterprise data in big data era,and can also create a fair and free competition order and a healthy competition environment for the digital economy market.