On The Application Boundary Of The General Provisions Of The Anti-unfair Competition Law Under The Creation Of The Public Domain

With the continuous expansion of information and digital technology application scenarios,the development of new cultural fields and new business forms,the continuous increase in the protection of intellectual property rights,a large number of general provisions of the Anti-Unfair Competition Law in judicial practice have infiltrated into the public domain of copyright,resulting in the continuous compression of the free creative territory,the trend of excessive privatization of the public domain,and the long-term improper erosion of public interests,causing continuous controversy.Therefore,it is urgent to clarify the application boundary of the general provisions of the Anti-Unfair Competition Law to intervene in the public domain.After examining the judicial practice of the general provisions of the Anti-Unfair Competition Law to protect the interests of works,it can be seen that the excessive intervention of the general clause in the public domain of copyright is mainly manifested in the protection of the contents that have been explicitly excluded from protection by the Copyright Law,the content of the expiration of the copyright protection period,or the encroachment on the scope that should be adjusted by the Copyright Law,thus forming the negative effect of compressing the creative space in the public domain,harming the balance of interests in the Copyright Law and destroying the reasonable assessment mechanism in the compensation for damages.The root causes of the above negative effects lie in the generalization of the utilitarian concept of the individual under the concept of strong protection of intellectual property rights,the distortion of the institutional positioning and applicable functions of the Anti-Unfair Competition Law,and the confusing application of the evaluation criteria of the general provisions of the Anti-Unfair Competition Law.In order to curb the irrational expansion of copyright,stimulate the public’s subsequent creation and promote the dissemination of knowledge,it is necessary to clarify the protection of the public domain in the context of free creation,so as to clarify the proper state of public domain protection.First of all,it is clarified that the protection of the public domain should be based on the utilitarian concept of social standards,and the dynamic innovation concept of sustainable development should be practiced,aiming to achieve the freedom and prosperity of literary and artistic creation.Secondly,since the public domain mainly exists in a negative form,it is necessary to clarify the application requirements of public domain protection in the two laws by clarifying the interpretation of the Copyright Law and the Anti-Unfair Competition Law on the protection of the interests of works,and at the same time establish a parallel intervention pattern of limited protection of the interests of works by the Copyright Law and functional complementarity with the Anti-Unfair Competition Law to protect the interests of works.Finally,the use of behavioral regulation to achieve the protection of the public domain is not only conducive to resolving the obstacles to the practical protection of the public domain of copyright,but also helps to realize the inherent convergence of the evaluation standards between the two laws.Guided by the natural state of public domain protection,the boundary of the intervention of the general provisions of the Anti-Unfair Competition Law into the public domain has been re-clarified.At the level of overall application,the Anti-Unfair Competition Law needs to protect free competition and maintain the order of market competition,and the general clause should be carefully applied under the guidance of the utilitarian concept of society and the concept of dynamic innovation and the requirements of the nature of the competition law,so as to achieve limited interference in the use of the public domain;At the level of normative application,in view of the "comity" relationship applied in parallel between the two laws,the general clause should be strictly applied to the scope of the protection excluded by the Copyright Law and the protection of the typed clauses of the Anti-Unfair Competition Law;At the boundary level of rights and interests protection,the general clause must be applied on the premise of infringing on non-typed competitive legal interests,and clarify the scope of protection of non-typed competitive legal interests by means of the examination of the substantive investment of business operators;At the level of the boundary of damage relief,the general clause must take the obvious damage to the market competition order caused by the use of others as the applicable requirement,and determine the degree of damage to the market competition order through economic analysis of the interests of business operators and consumers.