On the legal protection of the copyright of film works in the network era

[Summary of content]]The right of information network dissemination is an important right of the copyright owner of film works in the network information age; the principle of fault liability should be the principle of attribution of infringement of the right of information network dissemination of film works, and if there is fault, the corresponding tort liability should be borne; the issue of linking is the focus of controversy in the case of infringement of the right of information network dissemination of film works, and the different way of linking determines the different legal liability; network service providers (websites) bear the corresponding legal liability according to their respective ways of infringement and the degree of fault; China's legislation on the right of information network dissemination is still insufficient and cannot fully meet the needs of legal protection in practice; the author puts forward his own legislative humble opinion in view of the relevant actual situation.

Subject words]:Film works information network dissemination right link way tort liability legislative proposal

Introduction

In recent years, with the development of network technology, the improvement of computer performance and technology, and the acceleration of broadband network transmission speed, it is more and more common and popular for network users to watch movies on the Internet through computers. Nowadays, many websites provide different ways of movie online or download viewing services without the permission of the right holder of the movie work, which infringes on the information network dissemination right of the right holder of the movie work. Combined with the actual situation in the case, the author discusses the relevant legal issues of the civil protection of the right of information network dissemination of film works as follows.

The right of 1. information network dissemination is an important legally protected right of the copyright owner of film works in the Internet age.

With the rapid development of the dissemination of works on the Internet, the legislation on copyright will inevitably extend to the field of the Internet. The international regulations on the right of information network dissemination are mainly reflected in the World Intellectual Property Organization Copyright Treaty (WCT) and the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT) of the World Intellectual Property Organization in 1996.

my country's Copyright Law revised in 2001 newly established the right of information network dissemination, "that is, the right to provide works by wired or wireless means so that the public can obtain the right to work at the time and place of their personal choice". Article 26 of the regulations on the Protection of the right of Information Network dissemination, which came into effect on July 1, 2006, stipulates: "the right of information network dissemination refers to the provision of works, performances or audio and video products to the public by wired or wireless means, so that the public can obtain the right to obtain works, performances or audio and video products at a time and place of their personal choice." Article 2 of the regulations stipulates that if the works of others are to be disseminated to the public through the information network, the right holder shall obtain permission and pay remuneration. The "Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases Involving Computer Network Copyright Disputes" revised by the Supreme People's Court in December 2003 stipulates that the copyright of digital works still belongs to the copyright owner of the original work, and uploading without permission and without payment of fees, Dissemination and copying are all infringements.

It is reported that by the end of 2010, China has more than 0.3 billion Internet users, and the operating income of the network is trillions of yuan.[1] As the fourth media, the network has demonstrated more and more market value. Information network communication, as an independent exclusive right of the right holders such as film works, is a kind of right expansion of the right holders such as film works in the digital environment. The right holders of film works disseminate their works through the Internet and obtain corresponding benefits, and gradually become a business method and economic source that pays equal attention to the traditional communication such as the original cinema screening, audio-visual product distribution, and television broadcasting.

The principle of 2. fault liability should be the principle of attribution of infringement of the right of information network dissemination of film works.

It is very important to determine the principle of attribution of infringement of the right of information network dissemination of film works for clarifying the civil liability of network infringers. However, there is no clear provision for this in our law, and there are two doctrines of no-fault liability and fault liability.[2] The author believes that the principle of fault liability is more reasonable as the principle of attribution of network infringement from the position and role of the network service subject in the process of infringement, the particularity, complexity and development prospects of the network environment, and the current situation of relevant legislation and justice. The reasons are as follows:

First, the second paragraph of Article 106 of the General Principles of Civil Law of China stipulates that the principle of fault liability is that the perpetrator shall bear the general principle of civil liability for infringing upon the civil rights of others. The third paragraph of the article stipulates that the perpetrator is not at fault and shall bear civil liability only when the law stipulates that he shall bear civil liability. Although the tort of illegal dissemination of other people's film works by network service subject has certain particularity, it still belongs to the category of general civil tort.

Second, it is the legislative trend of developed countries that the network service provider is liable for network infringement due to fault, and the relevant judicial interpretation of our country also shows a clear tendency of fault liability principle.

The United States is the country of origin of the Internet and the country with the most developed information network in the world today, and its relevant legislation reflects the trend of changing from no-fault liability to fault liability, which has important reference value. In 1995, the United States promulgated the "Report of the Intellectual Property Working Group on Intellectual Property and National Information Infrastructure", which advocated the principle of no-fault liability for infringement by network practitioners. In order to protect the interests of network practitioners and avoid excessive legal liability due to direct infringement by network practitioners, the Digital Millennium Copyright Act (DMCA) passed by the U.S. Congress on October 28, 1998, in which the "Online Copyright Tort Liability Limitation Act" chapter establishes the "Safe Harbor Defense" system. The bill stipulates that the network service provider shall bear the tort liability only when it knows the infringement or the obligee gives a warning and does not take measures to delete the infringing information or prevent others from accessing it again, and has the intention of infringement.[3]

The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Computer Network Copyright Disputes is hailed as a legal mechanism comparable to the Digital Millennium Copyright Act of the United States.[4] The interpretation stipulates that the network service provider shall bear the tort liability only if it participates in, instigates or helps the network infringement, or if the right holder does not remove the infringing content after giving a warning. This interpretation is clearly also applying the principle of fault liability.

Article 20 of the regulations on the Protection of the right of Information Network dissemination stipulates that network service providers shall not be liable for compensation if they provide automatic network access services according to the instructions of the service objects, or provide automatic transmission services to the works provided by the service objects, fail to select and change the transmitted works and prevent others other than the designated service objects from obtaining them: Article 21 stipulates that in order to improve the efficiency of network transmission, those who automatically store works obtained from other network service providers and automatically provide them to service objects according to technical arrangements without changing the automatically stored works shall not be liable for compensation. Article 22 stipulates that the network service provider provides information storage space for the service object, for the service object to provide works to the public through the information network, clearly indicates that the information storage space is provided for the service object, and discloses the name, contact person and network address of the network service provider, does not change the works provided by the service object, and does not know and has no reasonable reason to know that the works provided by the service object are infringing, those who do not directly obtain economic benefits from the works provided by the service object shall not be liable for compensation.

Although the regulations do not clearly stipulate the principle of attribution of online infringement, it can be seen from the above-mentioned specific provisions on liability that network service providers only bear tort liability if they are at fault, and in fact they are also applying the principle of fault liability.

Third, from the experience of judicial practice in our country, the relevant precedents apply the principle of fault liability. However, when the right holder clearly informs the network content provider of the existence of infringement facts, and it is fully capable of controlling the links between the website and other websites without acting, resulting in the continued occurrence and expansion of the damage, it is determined that the network content provider is at fault. Should bear the corresponding legal responsibility.

Fourth, the principle of fault liability is conducive to the development of network information. According to the principle of no-fault liability, network service providers should bear the corresponding tort liability even if there is no subjective fault. This would undoubtedly unreasonably increase the burden of responsibility. Because of the vast amount of information on the network, it is actually difficult to monitor comprehensively. The principle of fault liability is determined as the principle of attribution of network infringement, which is conducive to maintaining the balance of interests among the disseminators, users and rights holders of information in the network era, and is conducive to promoting the development of information network.

The focus of controversy in the case of infringement of the right of information network dissemination of 3. film works -- link

In a number of civil cases of online infringement of film works handled by the author, some defendants, in order to exempt their own liability for tort compensation, use the film works spread on their websites as "links" to the content of other websites, and the defendant did not directly Defend on the grounds of infringement. The link problem is often the focus of disputes in the case of infringement of the right of information network dissemination of film works, and it is also an important issue to determine the liability of website infringement.

1. What is the network "link"

Link (Hyper Link), also known as hypertext links (hypertext Links), is the basic technology of web page production, refers to the use of hypertext markup language HTML(Hyper text Markup Language) to edit text files containing markup instructions, in two different documents or different parts of the same document to establish links. The Internet is composed of numerous websites and web pages in different countries, and web users can browse or download the web content on any website by clicking on the text, image or frame information about the link. Links are the foundation of the Internet. Without links, the Internet will not have the vast web page information, and it will not be possible to achieve the purpose of sharing information resources between websites.

Network links, in terms of their link performance and technical level, can be divided into general links and deep links. General link is also called direct link, which means that after the network user clicks on the link mark, the page of the chainer instantly changes into the page of the linked person. The network user can know which website he is currently in from the transformation of information such as name and website address on the website, and the link channel and pointing effect are obvious. Deep link (deep link) is different. It converts the content on other people's web pages, including text and images, partially or completely into the content of the chainer's page in the cross-over link. The linked website name and webpage logo are often hidden, making network users think that the chained content is the content on the chainer's web page, and the channel and pointing function of the link are difficult to show.[5]

2. The different ways of linking determine the different legal responsibilities of the network service providers.

The relationship between link and infringement has always been a hot topic. my country's "Regulations on the Protection of the Right of Information Network Dissemination" provides more detailed provisions on the issue of responsibility for linking acts. The author believes that "link" is only a technical means of the Internet, and it is not an infringement in itself, but the use of link technology to illegally disseminate other people's film works on the Internet may constitute infringement. The way of link is different, resulting in the website's controllability of the network dissemination of film works is different, which shows that the website's fault degree of network infringement is also different. Therefore, the legal liability of websites related to link infringing content should be determined according to the principle of fault attribution of network infringement.

The links between relevant websites in the case of online infringement of movie works are mainly shown as follows: network users can enter another website or webpage online or download to watch relevant movies by clicking on the link mark of a movie on the webpage of a website; there are mainly the following four different link methods, and the legal responsibilities of the link parties are also different.

First, if the above-mentioned link to the dissemination of the film is a general link that is not edited and cannot be controlled, the previous website, as the link maker, is not at fault for such a link and should not be liable for tort compensation. The illegal dissemination of other people's film works by the latter website as the linked party shall be regarded as its own independent implementation, and the website shall bear full responsibility.

The provisions of articles 20, 21 and 22 of the regulations on the Protection of the right of Information Network dissemination, which have just been released, all show that the new legislation does not investigate the liability for tort compensation for clean acts without fault.

Second, if the above links are general links that can be edited and controlled; The former website, as the chain producer, belongs to the right of information network dissemination to help and participate in infringement of other people's movie works. There is a fault for this link. According to the principle of attribution of network infringement and relevant judicial interpretations, the former website as the chain producer and the latter website as the chain recipient shall bear joint tort liability.

Third, if the above link is a deep link with no change in the first-level domain name in the address bar, and the website name and webpage logo on the linked webpage are still the original out-of-chain website instead of the linked website, the channel and pointing function of the link cannot be seen; It can be regarded as a direct and independent infringement committed by the website itself, and the website shall bear the liability for infringement. If there is evidence that the website of the linked party is the direct perpetrator of the infringement, it can also be investigated for joint tort liability.

Fourth, if the above link is a deep link with a change in the first-level domain name in the address bar, there are still information such as the website name and webpage logo of the original out-of-chain website on the linked web page, and the channel and direction of the link are not obvious, but there are also relevant information of the linked party's website; It should be regarded that the outgoing website has helped and participated in the network infringement, and has jointly obtained certain benefits from the infringement, the site is at fault. According to the principle of attribution of network infringement and the relevant judicial interpretation, the former website as the chain party and the latter website as the chain party shall be jointly liable for tort.

The Responsibility of 4. Network Service Provider for Infringing the Information Network Dissemination Right of Other People's Film Works

A network service provider is a subject that provides Internet users with Internet-related services, including online or downloading and watching movies. If the network service provider directly or entrusts others to upload the digitized movie works to its website server or workstation without the permission of the right holder, the network user can click on the content channel or column arranged and set by the infringing website to watch a movie online or downloaded through the Internet; this situation is easy to determine tort liability. However, the network is an open space, and there are a large number of third parties using the services provided by network service providers to illegally disseminate other people's film works. To determine the legal responsibility in this case, we must first clarify the category of network service providers.

Depending on the content of the network service provided, the network service provider can be divided into a connection service provider ISP (Internet Service Provider) and a content service provider ICP(Internet Content Provider). ISP refers to a network technology service provider that only provides physical infrastructure services such as connection and access; ICP refers to a network service provider that has its own home page and provides various works, news and other information content. Because the above two types of network service providers have different abilities to edit and control network information, their legal responsibilities are also different. Developed countries such as the United States generally prefer the ICP to assume strict liability similar to that of the publisher and the ISP to assume liability similar to that of the seller.[6]

The Regulations on the Protection of the Right of Information Network Communication and the Supreme Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases Involving Computer Network Copyright Disputes embody the principle of fault attribution when setting up the legal liability of network service providers related to copyright; while effectively protecting the legal rights of copyright owners and sanctioning infringement, it also provides a reasonable "safe harbor" for network service providers to avoid legal liability ", in order to protect and promote the healthy development of the emerging network industry. The author believes that there are the following situations for the third party to use the services provided by the network service provider to illegally disseminate other people's film works:
First, as a network service provider that provides connection services, ISP does not have the ability to edit and control network information, cannot monitor the legality of the network dissemination of film works, and has no subjective fault for the infringement committed by others on the network. It only plays the role of an information "channel"; therefore, the network service provider does not bear tort liability in accordance with the law. The tort liability for the infringement of the right holder's right to disseminate information on the network of a film work shall be borne by the person who directly commits the infringement.

Second, whether it is an ISP or an ICP, if the network service provider participates in or instigates or helps others to carry out the illegal dissemination of other people's film works through the network, there is a subjective fault.

Third, because the network service provider ICP, which provides content services, has a certain ability to edit and control network information, it knows that a third party uses its website to infringe on the information network dissemination right of other people's film works, or after the right holder puts forward a warning of infringement with evidence, it should take timely measures to remove the infringing content and stop the continued dissemination of the infringing content. At the same time, when the obligee requests it to provide the network registration information of the third party infringer, it shall have the obligation to provide the assistance of the registration information. If the ICP violates the above obligations, it is subjectively at fault and objectively committed an act of omission, and should be held liable in accordance with the law.

5. Legal Deficiencies and Legislative Suggestions on the Right of Information Network Dissemination

China's "Copyright Law" only makes more general provisions on the right of information network dissemination in Article 10, but there is no relevant expression in the "Copyright Implementation Regulations. This makes the relevant provisions not specific, operability is not strong. The Supreme People's Court's "Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases Involving Computer Network Copyright Disputes" has only nine short articles, which cannot comprehensively solve the application and protection of the complicated information network dissemination right on the Internet. The regulations on the Protection of the right of Information Network dissemination, which came into effect on July 1, 2006, have made more detailed provisions on the protection of the right of information network dissemination and strengthened the protection of this right; however, the legal status, classification, infringement, corresponding rights and their responsibilities of network service subjects have not yet been clearly and specifically stipulated. The protection of the right of information network dissemination of related works, including films, is still inadequate in law.

The author suggests that in the future relevant regulations or judicial interpretations, the following points should be clearly stipulated:

First, make clear provisions on the content of the right of information network dissemination, define the specific rights and obligations of the right holders of films and other works to the right of information network dissemination; what means and ways can the right holders use to exercise the right of information network dissemination when disseminating works on the network.

Second, according to the actual situation and development trend of the Internet, the categories of network service subjects should be clearly divided, and their respective legal status should be clearly defined; according to their different legal characteristics, their different rights and obligations should be stipulated respectively; so as to clearly distinguish the legal responsibilities that different network service subjects should bear.

Third, in view of the common forms of infringement of the right holder's right of information network dissemination on the Internet, we should comprehensively and specifically stipulate which mode of dissemination is an infringement, in order to effectively protect the right holder's right of information network dissemination.

Fourth, due to the current relevant legislation on the infringement of the right of information network dissemination of legal liability, especially in the amount of tort compensation is not clear and specific, resulting in the court's discretion on the relevant judgment is too large, the amount of judgment compensation is very different. The right holders of film works should not only have laws to follow, but also standards to follow to safeguard their right of information network dissemination. It is recommended that the relevant legislation, like the "Publication Management Regulations", clearly and specifically stipulate the legal liability for tort, including the amount of compensation.

(About 5900 words)

This article won the third prize of Jinan lawyer's business paper selection in 2011

Comments:

[1] The data on Internet users and operating income comes from the statistical report on the development of China's Internet published by the China Internet Network Information Center (CNNIC) in January 2011 (www.xinhua.org).

[2] See Zhang Xinbao: "Research on Infringement on the Internet", Renmin University of China Press, 2003 edition, p. 367.

[3] Robert P Merges et al., translated by Qi Yun et al., "Intellectual Property Law in the New Technology Era", China University of Political Science and Law Press, 2003 edition, p. 233.

[4] Cao Jianming, editor-in-chief: "Guidance on Intellectual Property Trial", People's Court Publishing House, 2004 edition, p. 6.

[5] See Zhang Xinbao: "Research on Infringement on the Internet", Renmin University of China Press, 2003 edition, pp. 349-357.

[6] See Zhang Chu: "Network Law", Higher Education Press, 2003 edition, pp. 61-64.

References:

[1] Zhang Jun et al., Research on Infringement in the Field of Intellectual Property Rights, Economic Science Press, 2005.

[2] Han Chifeng, Editor-in-Chief, Intellectual Property Law, Tsinghua University Press, 2005.

[3] Yang Lixin, "On Tort Law", People's Court Press, 2004 edition.

[4] Wang Liming: "Research on the Principle of Liability in Tort Law", China University of Political Science and Law Press, 2003 edition.

[5] Xue Hong, Intellectual Property Protection of Digital Technology, Intellectual Property Press, 2002.

[6] Hu Honggao and Zhao Limei, Introduction to Internet Law, Law Press, 2003.

[7] Wu Handong, Liu Jianwen, et al., Intellectual Property Law (3rd Edition), Peking University Press, 2005.

[8] Zhang Chu, Network Law, Higher Education Press, 2003.

[9] Guo Weihua, Legal Issues and Countermeasures in the Internet, Law Press, 2001.

[10] Zhang Xinbao, "Research on Infringement on the Internet", Renmin University of China Press, 2003.

[11] Zhang Yurui, "Intellectual Property on the Internet-Litigation and Law", People's Court Press, 2000 edition.

[12] Zhu Jiaxian Su Hapeng: "E Rule of Law Network", China Economic Publishing House, 2000 edition.

[13] Shen Muzhu, WTO and China's Legal System, Law Press, 2002.

[14] Robert P Merges et al., translated by Qi Yun et al., "Intellectual Property Law in the New Technology Era", China University of Political Science and Law Press, 2003 edition.

[15] Shoubu, "A Course on Intellectual Property in the Information Age", Higher Education Press, 2003.

[16] Liu Deliang, "Civil Law Issues in the Internet Age", People's Court Press, 2004 edition.