As the 24th World Intellectual Property Day is coming soon, on the morning of April 22, the Supreme People's Court held a press conference to release the Status of Judicial Protection of Intellectual Property Rights in Chinese Courts (2023), the Top 10 Intellectual Property Cases and 50 Typical Cases of Intellectual Property Right in Chinese Courts in 2023, and introduce the general situation of judicial protection of intellectual property in people's courts in 2023. Among them, the unfair competition disputes between Guangzhou XX Information Technology Co., Ltd. and Beijing XX Network Technology Co., Ltd. represented by lawyer Gao Jinghe of Zhong Yin Law Firm in the second instance was selected as one of the "Top 10 Intellectual Property Cases in Chinese Courts in 2023".
This case is the first case in the country to call the server API interface to obtain data for trading and reselling. The lawyer believes that whether the data is allowed to be captured is not only necessary to consider the material conditions such as the way, means, form and carrier of the data (information) to be publicly disclosed, but also to make a comprehensive judgment based on whether the data demander has the ability to identify, access and process the corresponding data (information), that is, to consider whether the data is accessible to the data demander. For the public data in the platform, based on the characteristics of data integration and interaction in the network environment, platform operators shall tolerate others to a certain extent to legally collect or use the publicly available data in their platforms; otherwise they may hinder the operation of data for public research or other beneficial purposes, which is contrary to the spirit of Internet connectivity. Whether it is through the user's personal browsing or web crawler and other technical means to obtain data, as long as it complies with the general technical rules, its behavior is essentially the same, and the network platform shall not discriminate against the behavior of obtaining such public data through automated programs such as user browsing and web crawler without reasonable causes. The termination of public data access to users is, to a large extent, aimed at monopolizing and controlling public data, so that it may occupy a dominant position in the professional network market and ensure that it obtains an unreasonable competitive advantage in the data analysis market. Anti-capture of public data may cause the bankruptcy of relevant data analysis service providers and endanger the free flow of public discourse and data resources, and anti-capture of public data constitutes a monopoly. In addition, the data flow mechanism aimed at achieving data reuse is a key link in the data element market. Data flow includes multi-party consensual data sharing and unilateral non-consensual data capture.
In particular, the behavior of data capture is equally important for the full realization of the value of data. Data capture is an inevitable product of the development of the era of big data. In essence, it is a technical form of machine and program to simulate user access behavior, which can efficiently and cheaply screen, filter and aggregate the data required for subsequent use. Prohibition of data capture in general essentially ignores the value of data circulation contained therein. To this end, the method of balancing rights and interests shall be used to classify and grade the data involved and define the legitimate boundaries of capture: When enterprise data cannot be obtained from outside the captured party, A. the capture party does not infringe on the security of the computer information system, data security, and copyright, even if it may infringe on trade secrets or substantially replace the captured party's data business; at this point, capture shall be allowed. B. The capture party does not infringe on the security of the computer information system, copyright, trade secret, nor seriously infringe on the data security of the captured party, even if it may substantially replace the data business of the captured party; at this point, capture shall be allowed. C. The capture party infringes on the security of the computer information system or seriously damages data security; at this time, capture shall be prohibited. D. The capture party infringes on copyright, or causes multiple rights and interests damage at the same time, and substantially replaces the data business of the captured party; at this time, capture shall be prohibited. E. The capture party does not infringe on the security of the computer information system and copyright, but uses "excessive capture" to infringe on trade secrets, and substantially replaces the data business of the captured party; at this time, capture shall be prohibited. F. The capture party does not infringe on the security of the computer information system, and does not substantially replace the data business of the captured party, but infringes on copyright, or uses "excessive capture" to infringe on trade secrets; at this time, it shall weigh whether to allow the capture on a case-by-case basis.
The final judgment of this case clearly recognized and protected the right to hold data resources, and based on the balance relationship between "strong protection" and "orderly circulation" of data, it proposed the judgment guidance that market subjects shall obtain data "in a proper way" and use data "in a moderate manner".
Lawyer Profile
Lawyer Gao Jinghe is the senior partner of Zhong Yin Law Firm, a member of the National Practice Steering Committee of Zhong Yin, and one of the leads of the Intellectual Property practice group of Zhong Yin. Part of the cases handled by him have been selected as the Guiding Cases of the Supreme People's Court, Trial Guidance for Intellectual Property of the Supreme People's Court, Hundred Cases in Five Years at Intellectual Property Court of the Supreme People's Court, Excellent Cases of the Year of National Court System, the Top Ten Intellectual Property Cases of Chinese Courts, the Top Ten Cases on Judicial Protection of Intellectual Property Right in Guangdong Courts, the Top Ten Cases on Judicial Protection of Intellectual Property Right in Henan Courts, the Annual Report on Chinese Intellectual Property Lawyers. He has participated in the handling of the first national plant new variety name protection case, the first case concerning iDataAPI capture and transaction data. He has been selected as one of the "50 Intellectual Property Lawyers under the Age of 50 in China", the "Guide to Premium Intellectual Property Legal Services Brands (2023)", and "2024 Brand Star in the Area of Dispute Resolution: Ingenious Lawyer".
Lawyer Gao Jinghe has more than 16 years of experience in intellectual property dispute resolution and non-litigation legal practice, and is deeply engaged in trade secret protection, standard essential patents, new plant variety rights, competition and antitrust, famous trademarks recognition, software copyright, integrated layout design and other subdivisions. He used to be a member of Intellectual Property Practice Committee of Henan Lawyers Association, a member of Competition and Anti-monopoly Law Professional Committee of Guangdong Lawyers Association, and a member of Trade secret Law Professional Committee of Shenzhen Lawyers Association. He currently is an expert in overseas intellectual property rights protection assistance of China (Shenzhen) Intellectual Property Protection Center, a legal expert in the Intellectual Property Protection Workstation of Shenzhen Software Industry Association, one of the first batch of overseas intellectual property dispute response guiding experts in Dongguan Intellectual Property Protection Center, an expert in Ganzhou Council for the Promotion of International Trade Foreign Legal Talents Expert Database, a mediator of Dongguan People's Mediation Committee for Intellectual Property Disputes, an arbitrator of Beihai Arbitration Commission, external mentor of School of Law of Henan Normal University and external mentor of Shenzhen University Law School, etc.