On The Dilemma And The Way Out Of Protecting The Rights And Interests Of Commercial Data Under The Anti-unfair Competition Law

Against the backdrop of the increasingly growing data industry,a comprehensive legal framework is required to protect commercial data rights.Through the analysis of legal rules,it can be found that the laws protecting commercial data rights are not entirely absent,except for the specific legislation regarding the rights of disclosing commercial data.Due to the absence of specific regulations,only principle-based clauses can be applied in judicial practice,resulting in two critical disputes concerning the scope of protectable data and the determination of improper behavior.This has created a predicament for the protection of commercial data rights.To encourage the rights of data collectors,establish stable judicial standards,and maintain competition order,these two issues should be resolved.Regarding the scope of protectable data,based on the consensus of commercial data rights,the content is to restrict others from disseminating and using such data.The analysis of the reasons for the controversy that arises from this consensus requires that protectable data be in a public state,have a substantial amount,incur substantial collection costs,and take reasonable protection measures,without considering the legality of the data source.A public state means that any content in the data can be widely known to the relevant public or can be easily accessible.Requiring commercial data to be in a public state can avoid legally meaningless duplicate protection and prevent erroneous guidance of entities with rights.The determination of substantial amounts and substantial collection costs needs to be made on a case-by-case basis.Requiring commercial data to have a substantial amount and incur substantial collection costs can encourage data collectors’ initiative and maintain the public interest.Reasonable protection measures only require that the data holder’s protection methods for the data achieve the disclosure of commercial data rights.Since the purpose of taking reasonable protection measures is to disclose rights and maintain the public interest,the reasonableness of protection measures refers to the rationality of the disclosure method rather than the rationality of the protection content.The determination of the impropriety of actions that infringe on commercial data rights should focus on the analysis of business ethics.In the analysis,objective market effects should be considered,and the proportionality principle should be introduced to further assess the market effects,ensuring the operability of business ethics standards,the impartiality of judicial decisions,and the development of the market as a whole.The typification of actions may cause problems because it is difficult to accurately determine the losses incurred by the rights holders and whether the actions promote the public interest.Therefore,in addition to the typification of actions,a proportionality-based market effect judgment should be included in the legal provisions,and a substantial damage standard should be added to the legal provisions after the typification of actions as a reasonable approach.