Page 236 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 7 Platform Users’ Entitlement to UGCs: Human Use and Web Scraping
An Intermediary-oriented Approach

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scraping in China. Many scraped websites bring both copyright claims and anti-unfair
competition claims against web scrapers. Due to the high and sometimes uncertain standard
of originality in the arrangement or selection of content, most courts have chosen to protect
UGC databases through the anti-unfair competition law. For example, in the landmark
case of Dianping v. Aibang discussed above, the trial court upheld the plaintiff platform’s
copyright claim, but the appellate court reversed on the ground of lack of originality and
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instead compensated the plaintiff for unfair competition. In the recent case of Gumi v.
Yuanguang, the Shenzhen Intermediate Court also applied the anti-unfair competition law to
the defendant’s web scraping.
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Proving that the defendant is a competitor is a prerequisite to a plaintiff bringing an
unfair competition suit, however, the threshold for establishing a scraper as a competitor of
a scraped website is low. As long as the plaintiff can prove that the scraper and the scraped
website attract the same group of users, the scraper will be treated as a competitor providing
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a substitute service, even if the scraper is in a different industry from the scraped website.
The courts have never rejected a plaintiff’s claim when there has been a competitive
relationship between the plaintiff and the defendant. The subject of the contest has been the
fairness of the use of the scraped content. The anti-unfair competition law consists of two
categories or provisions. The first is the provision on specific unfair practices, including
those that are confusing, misleading and discrediting. These provisions clarify the conditions
needed for an act to be fair and legal.
Due to the rapid development of business models and changing market conditions,
legislators have not provided an exhaustive list of unfair practices. Acts that go beyond
the list are subject to the other kind of provision: the general principle. For example, the
general principle in Chinese anti-unfair competition law reads that, ‘Businesses shall, in their
production and distribution activities, adhere to the free will, equality, fairness and good faith
principles, and abide by laws and business ethics’. Until now, all of the unfair competition
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claims for web scraping have been addressed by the general provision. The general principle
has also been referred to as an ‘umbrella provision’ because it can cover any act that violates
an honest business practice. It is flexible and it easily accommodates new business practices.
However, there have been serious omissions, leaving considerable uncertainty on how it is
applied in individual cases. One solution has been to extract the necessary elements from
precedents that have addressed similar problems.

176 See supra notes 65-66 and accompanying text.
177 Dianping v. Aibang (2011) Yi Zhong Min Zhong Zi No. 7512 Civil Judgement.
178 Gumi v. Yuanguang (2017) Yue 03 Min Chu No.822 Civil Judgement.
179 Meijing v. Taobao (2018) Zhe 01 Min Zhong No.7321 Civil Judgement; Dianping v. Aibang (2011) Yi Zhong Min Zhong Zi
No. 7512 Civil Judgement; Weimeng v. Taoyou (2016) Jing 73 Min Zhong No. 588 Civil Judgement; Dianping v. Baidu (2014)
Hu Gao Min San Zhi Zhong Zi No. 85 Civil Judgement, etc.
180 Anti-Unfair Competition Law of the People's Republic of China (2017 Revision), art 2.

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