| The development of Internet technology has promoted the prosperity of digital economy.Among them,with the rapid development of the relevant technical means of data capture,a variety of unfair competition issues related to data capture also emerge in an endless stream.In recent years,the research on unfair competition in the Internet industry focuses more and more on unfair competition behavior of data capture.However,there is no unified conclusion on the identification of unfair competition behavior of data capture.Therefore,this paper explores the identification of unfair competition behavior in data capture from the following four parts.The first part defines the concept of data and data capture behavior respectively,and clarifies that data is the expression form of information,and data includes original data and derived data.There are three main methods to implement data capture: public data set download,open API protocol capture and crawler capture.The second part points out the existing problems by sorting out the current legal provisions and judicial status quo of the identification of unfair competition behavior of data capture.At the level of legal provisions,the provisions of general provisions and Internet articles are too vague.At the judicial level,abstract business ethics is the core criterion for the excessive application of general provisions and the determination of whether data capture constitutes unfair competition.In the third part,by analyzing the relevant legislation of data protection in the United States and the European Union and the judgment thinking of cases involving data capture,the relevant factors that the courts in the United States and the European Union should focus on when trying such cases are summarized,including whether the data is open,data rights and interests,improper behavior and damage results.Finally,the paper puts forward to identify the elements of unfair competition behavior of data capture to enlighten.The fourth part clarifies whether a certain data grab behavior belongs to the identification rules of unfair competition behavior,and puts forward four elements of data grab constitute unfair competition,including four aspects: subject element,subjective fault element,improper behavior and damage result.First of all,the operators with competitive relationship are the subjects of unfair competition behavior of data capture.Secondly,the subjective fault element of unfair competition behavior of data capture is "malice".Thirdly,the improper behavior of data capture is determined It is necessary to consider whether the operator violates business ethics and whether it has obtained authorization from the operator and the user;Finally,the damage results of unfair competition behavior of data capture include the damage to market competition order,the damage to the interests of other operators and the damage to the interests of consumers. |
