Author Information

Sun Jimin, Ph.D. Candidate, Renmin University of China Law School

Abstract

Current judicial practice and theoretical development concerning data scraping activities have progressively formed two fundamental paradigms: rights protection and self-regulation. The rights protection approach aims to grant standardized legal rights to diverse entities and continuously improve the rights system to address its shortcomings. The self-regulation approach relies on the self-judgment capabilities of acting entities and market adjustment mechanisms, leveraging the positive role of legal norms in facilitating negotiation, thereby forming an open regulatory framework to enhance efficiency and balance conflicts between private rights and public interests. Given the practical issues with the rights protection paradigm - such as poor technological adaptability, neglect of public interest, and failures in multi-party collaboration -and considering the non-exclusivity and heterogeneous value of data as a public good, criticisms of "free-riding" are difficult to sustain. Therefore, it is necessary to adopt the self-regulation paradigm and reconstruct contract law norms accordingly. This requires moving beyond traditional consensual frameworks towards a goal of concretely interpreting public interest. Based on the principle of data interoperability, a comprehensive evaluation should be conducted on whether technological innovations brought about by scraped data can create reciprocal mechanisms, thereby forming a multi-stakeholder regulatory framework.

Keywords: data scraping; rights protection approach; self-regulation approach; regulatory paradigm shift; multi-party participation mechanism; reciprocity mechanism