In recent years，Continuous disputes caused by enterprises for data，Cases of judicial referees are abound，And mostly solve the general terms of the "Anti -Unfair Competition Law"。In most judgments，The private economic interests given by the court to the data owner are highly concerned，Rarely considers the long -term innovation interests，This is not in line with the new interpretation of the market competition order in the "Anti -Unfair Competition Law"，It does not meet the era requirements of innovation -driven economic development。In this background，Legisfactory identification mode of building data competitive behavior，Make private economic benefits appropriately with long -term innovation interests、Balanced protection，It undoubtedly has important theoretical and practical significance。

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Data competition framework used by most courts in my country，Form can be summarized as "Violation of commercial ethics + suffering economic losses"。The economic value of data is beyond doubt，Therefore, "recognized business ethics" has become a key factor in determining the legitimacy of data behavior。However，Different courts have different interpretations of "commercial ethics"。In Baidu and Hantao's unfair competition disputes，Commercial ethics is explained as a substantial alternative to competitors。In Weibo and the pulse inaccurate Bet365 app download competition disputes，"Business Ethics" is explained as an important resource for others (data)。In the case of unfair competition disputes between Gumi and Wuhan Yuanguang Company，"Commercial Ethics" is also explained as its obtaining data without permission。Obviously，These interpretations are essentially the requirements for "economic losses".，Unable to make "commercial ethics" a separate composition of an independent composition。In other words，As long as the plaintiff's data is not willing to be obtained by others，Then the obtaining behavior must be improper。"Violation of commercial ethics + suffering economic losses" is a variant of general infringement composition，Because economic interests are not illegal rights，Therefore, in principle, the analysis framework should reduce the protection of private economic benefits，space to expand the freedom of others' behavior。But you can see，The actual results are exactly the opposite。

If general infringement constituent elements are regarded as the proper balance between the protection of private rights and freedom of behavior，So the actual operation result of "violated business ethics + suffering economic losses" analysis framework made the data owner get too much protection。Of course，Some courts have considered factors other than the protection of private interests。For example, in the case of Baidu and Hantao's unfair competition disputes，The court considers the incentive factors，That is, if you let it be obtained without permission, you can obtain the data of others，It may cause operators to no longer have the motivation bet365 Play online games to "produce" data，As a result, the competitive order is destroyed，Eventually affect consumer benefits。This analysis is not established，Because the data is not intellectual property，and the court's speculation on the consequences is not based。In fact，European and American courts have far -tolerances in my country，However, there is no consequences that operators withdraw from the market and cause consumer welfare damage。Therefore, it can be said，The legitimate identification model of data competitive behavior in the current judicial practice is excessively biased towards the protection of private economic interests。

　　Insufficient attention to long -term innovation

Traditionally，"Anti -Unfair Competition Law" tends to protect the static market order，Expressing the challengers in the favor of the person who favored the inheritance of the operator，This protection plan is inherently consistent with the protection of strict private economic interests。But with the development of economic globalization and the change of my country's economic development to an innovation -driven model，To promote market competition、Dynamic market order that improves economic efficiency is increasingly valued，and innovation enters the vision of the "Anti -Unfair Competition Law" because of its often improved breakthrough efficiency.。But innovation，Especially forward innovation，There is a conflict between the protection of strict private economic interests。Strictly protect the private economic interests attached to the data, although it will promote the operator Bet365 lotto review to provide better products and services，But at the same time, the owner of the data is for the purpose of protecting the existing economic interests，Blocking data to hinder potential competitors，Then it brings extremely serious adverse consequences to innovation。

First，Rich public resources are the prerequisite and guarantee of innovation，This can be seen from the Internet software innovation。Basic Agreement according to the "end -to -end" of the Internet，Anyone can freely use the Internet transmission data packet as long as anyone complies with a specific neutral rule，This makes the Internet itself a public resource，Developing new software only needs to obtain market recognition without worrying about being blocked by the controller of the Internet，Internet software Innovation Storm was ignited from this。2，Similar to Software Development from Dite.com，Data is the basic raw material for the development of the emerging artificial intelligence industry -the core of artificial intelligence is the algorithm，and optimizing the algorithm requires a large amount of high -quality data "feeding"。This means，If the data cannot be placed in public space，or at least make it have a certain public resource attribute，Then the subject that controls the data will be able to hinder its potential competitors in an isolated data.。In our country，Massive data concentration in search engine、Instant communication software and large platform websites and other very few operators，If the legal system will further strengthen the data control of a minority operator，Even Bet365 app download data property rights，So innovation will become a passive water。

　　Legislative identification mode Restructory: Balance of private economic interests and long -term innovation interests

Although at the principle level，Incorporate the dynamic competition order and its implied innovation interests into the protection scope of the "Anti -Unfair Competition Law" to receive support from most competitive legal scholars，But how to institutionalize the scope of this expansion is not clear，This is also one of the reasons why the courts tend to use the requirements of "commercial ethics" to put data property rights through virtual "commercial ethics"。To cope with this problem，You can consider building a two -level legitimate identification model to coordinate the balance between the private economic interests and the long -term innovation interests。

The role of the first level is to weaken the protection of the economic interests of data owners，This will bring some data to become the actual effect of public resources。The specific method is to build two institutional frameworks in the first level，A core of subjective fault，One with the result of damage as the core，As long as the behavior of obtaining or using other people's data, as long as it meets one of them，It can be considered that the constituent elements that have met the first level，Then preliminary identification behavior is not proper。The subjective fault here should be malicious，The operator who obtains or uses his data knows that his behavior will cause the plaintiff to cause economic loss，and actively pursue the result of the damage。What needs Bet365 app download to be emphasized is，If the defendant's behavior is intended to seek direct interests for yourself，Disructural economic interests of the plaintiff are just a release result，You can’t consider the defendant's behavior to be malicious。The institutional framework with the result of damage is refers to，The plaintiff suffered a serious economic loss that is unavoidable。The "unavoidable" here refers to the defendant's effective technical protection measures that can be expected。"serious economic loss" means that the defendant obtained the data obtained by the plaintiff's time or the economic cost。If the behavior of obtaining the data meets the constituent elements of the first level，It can be initially believed that the behavior constitutes an unfair competition。But this is not the final conclusion，It also needs to be tested at the second level。The role of the second level of composition is to include long -term innovation interests into consideration，This should include at least two considerations。The first consideration factor is the type of data，The easier it is、Basic data, the more difficult it is to use it，Especially for basic data created by users and proactively disclosed，such as nickname、Gender、Region, etc. should be regarded as public resources，Allows other operators to get freely。The second consideration is the purpose of the defendant after obtaining the data，If it is used for precision processing or innovative development，In principle, the preliminary conclusion should be reversed，Instead, it is determined that the defendant's behavior bet365 Play online games of obtaining data is not an improper competition。

(Author Unit: School of Law of Shenzhen University)