Fight against data scraping: legal redress?

Data scraping (ie, conducting automatic data extraction (usually by way of robots) from websites) is an increasing concern for businesses in the era of big data. Web scrapers often use this data – including news, financial information, personal data and customer reviews – for commercial purposes, such as offering services that compete with or complement the offerings of the scraped websites.

Do businesses have any legal redress against web scrapers for extracting data from their own websites? The Chinese courts have answered in the affirmative and provided two routes for protection – namely, copyright infringement and unfair competition.

Copyright infringement
To establish a copyright infringement claim against data scrapers, the party asserting rights over the data (ie, the data owner) must prove two elements.

First, the scraped data must be copyrighted. In Dianping v Aibang the Beijing Haidian District Court confirmed that for restaurant reviews on Dianping.com (China’s equivalent of Yelp), only those showing the personality, emotion and experience of the author (ie, with originality) may be protected by copyright. Further, as confirmed in Tencent v Toutiao, although no copyright applies to current affairs, news reviews which include the author’s personal comments and appraisal have originality and are subject to copyright protection.

Second, the data owner must have exclusive ownership of the copyright or be authorised by the actual data owner to claim the copyright on its behalf. In Dianping v Aibang the Beijing First Intermediate People’s Court, in its appeal decision, rejected Dianping’s copyright infringement claims on the basis that the copyright in the restaurant reviews was jointly owned by Dianping and its users – therefore, Dianping was not a suitable plaintiff. Although Dianping later updated its terms of use, pursuant to which users agree to assign their copyright in restaurant reviews exclusively to Dianping, in Dianping v Aibang the court rejected the general enforceability of the updated terms of use, recognising Dianping’s exclusive copyright only in a few reviews where the authors had expressly affirmed their assignment of copyright to Dianping in writing. The validity of such terms of use (ie, where the network platform gives no valuable consideration to the assignment of copyright) is questionable and yet to be confirmed by court decisions.

Therefore, in a copyright infringement claim for data scraping, data owners must usually prove that:

• the data was an actual copyrighted work by an individual;
• the copyright was acquired by the data owner (if needed); and
• the individual gave express authorisation to the data owner to take enforcement actions on his or her behalf.

Unfair competition
Unlike copyright infringement, in an unfair competition claim the data owner need not have exclusive ownership of the data or express authorisation from the copyright owner for the same, but would have a valid claim under the Anti-Unfair Competition Law as long as its legal commercial interest can be proved to have been infringed by data scraping.

In Dianping v Aibang the court ruled that customer reviews collected and sorted on dianping.com are the plaintiff’s fruits of labour with high commercial value and should therefore be protected under the Anti-Unfair Competition Law.

It was further confirmed in the leading case of Sina Weibo v Mo Mo that a network platform has the right to obtain users’ personal information for the purpose of its own business activities and with consent only if it is collected for commercial use or has commercial value. The platform would have a legitimate claim if such personal information is ‘scraped’ without consent.

To establish an unfair competition claim, the content on the data scraper’s website must be proved to be a “substantive substitute” of that on the data owner’s website, so that users could obtain a substantive part of the relevant data merely by accessing the data scraper’s website and would therefore visit the data owner’s website less frequently. According to the decision in Dianping v Baidu Map, such substitution constitutes unfair competition because it:

• damages the data owner’s interest;
• violates general commercial ethics; and
• disrupts the economic order and market competition in the network environment.

Further, in determining the existence of unfair competition, courts usually consider the balance of different interests. In Dianping v Baidu Map, while recognising the positive effect of a new business method of Baidu Map (China’s equivalent of Google Maps, which in its updated version displayed restaurant reviews when searching a place on the map), the Shanghai IP Court ruled that:

• the method’s positive effect was disproportionate to the damage that it caused to Dianping’s legal commercial rights; and
• the same benefits could be achieved through other means.

The display of restaurant reviews on Baidu Map led to disproportionate damage and less user traffic to Dianping. In cases involving personal data scraping, courts usually consider the balance of interests between consumers, businesses and fair market competition – a balancing act that is required now more than ever, as evidenced by the new Anti-Unfair Competition Law.