Page 237 - 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

In the first influential web scraping case, Dianping v. Aibang, the Beijing No.1
Intermediate Court proposed a ‘reasonable and non-substitutional use’ doctrine, in which
the web scraper is required to use the scraped information in a reasonable way and within a
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reasonable scope, and must not become a substitute for the scraped service. This doctrine
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has been adopted and further developed in several cases. For example, in Dianping v.
Baidu Map, the Shanghai Intellectual Property Court affirmed that web scraping is not illegal
per se, but the scraped information must be used reasonably. The court examined the
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reasonableness of the use from two aspects. First, the scraped information should not be used
to substantially substitute the relevant services of the scraped website. This reiterates the
‘reasonable and non-substitutional use’ doctrine. Second, there must be no other way to use
the scraped information that would cause less harm to the scraped website and the creators
of the scraped UGC, and the use must generate more public benefits. I call this the ‘non-
alternative use’ doctrine.
New doctrines have been introduced to cope with the web scraping of personal
information. In Sina Weibo v. Momo, Sina Weibo, one of the biggest social media platforms
in China (often called the Chinese Twitter or Facebook), sued Momo, China’s top dating
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app, for scraping a vast amount of users’ personal information. As the scraped information
was personal, pertaining to private educational background and professional information,
the Beijing Intellectual Property Court considered the information holder in addition to the
scraped website. The court put forward a three-factor test to determine the fairness of the
scraping of personal information. The first was whether the use damaged the interests of
the information holder, such as affecting his or her freedom to choose service providers, the
right to be informed and privacy. The second factor related to whether the use undermined
the openness, fairness and impartiality of market competition in the Internet environment.
The third factor was whether the plaintiff had met the burden of proving the unfairness of
the defendant’s use. The court underlined that online business practices with new technology
or new business models are presumed to be lawful. It is the plaintiff’s burden to prove the
unfairness of the defendant’s act.
2) Misappropriation doctrine in the US
In the US, website operators can bring a misappropriation claim under the anti-unfair
competition law. The misappropriation claim was enunciated in the case of International
News Service v. Associated Press (INS v. AP) in which the US Supreme Court held that
although AP had no copyright for its news, AP had a ‘quasi-property right’ against others’

181 Dianping v. Aibang (2011) Yi Zhong Min Zhong Zi No. 7512 Civil Judgement.
182 Gumi v. Yuanguang (2017) Yue 03 Min Chu No.822 Civil Judgement (Yuanguang’s use of the data hosted by Gumi is enough
to replace the real-time operation information inquiry service provided by Gumi’s and to seize the market share of Gumi,
which exceed the reasonable extent of use).
183 Dianping v. Baidu (2014) Hu Gao Min San Zhi Zhong Zi No. 85 Civil Judgement.
184 Weimeng v. Taoyou (2016) Jing 73 Min Zhong No. 588 Civil Judgement.

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