| In the era of big data,the economic value of commercial data is continuously being explored and data competition happens on end.However,the legal nature of commercial data is in dispute,and the issue of legal protection therefor remains to be solved.Firstly,this article defines the concept and the scope of commercial data.Commercial data in this article refers to large volume and variety of data collected and stored by business operator that is available for commercial use,as well as new data available for commercial use that is generated from processing and analysis of the aforementioned data.Secondly,this article reviews various theories that recognize commercial data as rights.The relevant theories include the "real right theory",the "intellectual property right theory",and the "intangible property right theory".The "real right theory" ignores the intangibility of data.As for the "intellectual property right theory",commercial data cannot be classified as any of intellectual creation,business mark,or business reputation;and even if classified as a new type of intellectual property object,it will also undermine the system of intellectual property itself.In respect of the“intangible property right theory",it has two branches.One believes that "data right" or "data property right" shall be stipulated by law.This perspective,however,ignores the nature of data as information carrier and may easily cause conflicts during the process of allocation of rights.The other branch,the“information property right theory",is still at the stage of development so that no mature theoretical system has been established,and the so-called "information property right" is also facing complex problems like the high uncertainty of subject matter,the difficulties in coordinating the relationship between "information property right" and other rights,and the ambiguities of how to acquire such right.This article argues that commercial data is of multiple legal natures.Commercial data whose selection and arrangement meet the threshold of originality and creativity may constitute work created by compilation,thus eligible for copyright protection;and commercial data that is valuable,unknown to the public and kept secret may be protected as trade secret.The legal nature of commercial data that neither constitutes work created by compilation nor trade secret shall not be regarded as legal rights but legal interests protected under Article 2 of the Anti-Unfair Competition Law of PRC,which will not only protect business operators’ legitimate devotion to in commercial data,but also promote the free flow of information.This article summarizes two unfair competition rules with regard to the protection of commercial data through review of judicial cases:the first one is,if any business operator,without permission,misappropriates commercial data generated by other business operators through lawful inputs for the purpose of homogeneous competition and cause substantial substitution effects,such act shall constitute unfair competition;the second one is,if any business operator,without permission,makes use of commercial data generated by other business operators through lawful inputs for the purpose of non-homogeneous competition and thus damages the legitimate rights and interests of consumers,such act shall constitute unfair competition.Finally,this article puts forward suggestions and ideas with respect to legal protection of commercial data in China.First,we shall withhold the idea of generalization of rights;second,we shall emphasize the importance of regulation of unfair competition conducts;third,we shall also pay attention to the protection of personal data. |
