Research On The Anti-unfair Competition Law Of Data Fetching Behavior

With the advent of the era of big data,data has gradually penetrated into all walks of life as an important resource.More and more information is gathered in the Internet in the form of data.As the Internet user enjoys the wealth of information,the data is being consolidated and acquired the higher demand,data retrieval is the technology that improves the speed and quality of the Internet retrieval service.Data capture refers to the process in which search engine providers filter URL and locate all relevant Internet information data for a specific retrieval topic and present it to network users after filtering and integration.Data capture is conducive to improving the user’s search experience,and can bring huge network traffic to Internet operators,so that they can obtain advertising benefits such as advertising revenue.With the increasingly fierce competition of the Internet industry,the data is being commercialized,and the business value of the data is growing,Internet companies are starting to expand their business scope,the data became the most important competitive Internet industry resources.Network operators have made every effort to compete for data resources,and the originally neutral data capture technology has gradually evolved into a powerful weapon for operators to seize competitors’ data resources.In this industry background,various types of data capture disputes occur frequently and disrupt the Internet competition order.Therefore,it is necessary to make legal regulations on data capture in the context of market mechanism can not solve the problems.At present,there is no specific legal provision for regulating data capture in China and the law does not clarify the legal positioning of data and its protection methods.Currently,there are mainly three kinds of regulatory paths in judicial practice: intellectual property protection,anti-unfair competition law and data propertization.Combined with the theoretical basis,legislative status and judicial practice,it is obvious that the approaches of intellectual property rights and data propertization cannot cover the full range of data rights protection.Faced with the explosive growth of Internet data and the complex competition behaviors,applicable anti-unfair competition law to regulate data fetching behavior has irreplaceable and realistic feasibility.The anti-unfair competition law not only has the necessary supplementary function and the system coordination function to other departments law,but also plays the unique role of maintaining the fair competition order and balancing the competitors,consumers and social public interests.In particular,the current legislative model of the anti-unfair competition law can make up for the lag of the statute law and the limitation of the scope of regulation.However,there are also limitations in the application of the general provisions of the anti-unfair competition law to regulate data capture behavior.When China’s current "Anti-Unfair Competition Law" was enacted,China’s Internet market was in its infancy,and the particularity of competition in this field was not prominent,the legislation did not pay attention to the Internet competition behavior.Although China’s newly revised Anti-Unfair Competition Law stipulates that “Internet Monographs” increase the regulation of using technology to implement unfair competition in the Internet field,it is only based on the enumeration.And there are no terms to refine.Therefore,In judicial practice the determination of unfair competition in data capture is entirely at the discretion of the court.If the judge fails to reasonably apply the general provisions in judicial practice,it will inevitably affect the free flow of data,strangle emerging network technology and hinder the development of Internet economy.At the same time,the absence of the stop loss mechanism of anti-unfair competition law and the imperfection of the damage compensation system lead to the loss of the captured party continued to expand,winning the lawsuit and losing the market,unable to effectively protect the legitimate rights and interests of Internet operators.Therefore,when applying the data fetching behavior of anti-unfair regulation system,the applicable conditions of general terms should be clarified and the applicable scope of general terms should be determined reasonably.At the same time,in view of the lack of stop loss mechanism of anti-unfair competition law and the unsatisfactory effect of damage compensation,but by the introduction of the ban and reinforcing the punitive compensation system,through the clear applicable rules ban before litigation,design the damages reference factors and strong maneuverability reference system,reasonable the specification of the anti-unfair competition law regulation data fetching behavior problems.