1. The right of information network dissemination
The concept of "information network dissemination right" is In our country's legislation, it first appeared in the "Copyright Law" revised in 2001, and is an "exclusive right" of the copyright holder. The definition of this right is directly translated from the World Intellectual Property Organization Copyright Treaty (hereinafter referred to as WCT), and the text is relatively obscure. Although it has been nine years since it was stipulated, there are still misunderstandings about this right in academic research and judicial practice. This article will use cases to analyze the true meaning of "information network communication rights".
Case 1: Website A stores movie A in its server without authorization. Any network user who visits the website can download or stream movie A at any time. Watch;
Case 2: Website B broadcasts TV series B on its website without authorization. Internet users can only watch TV series B online during the time limited by website B. TV series, which is broadcast every day on a scheduled basis.
The specific provisions of "information network dissemination right" in my country's Copyright Law are as follows: providing works to the public in wired or wireless ways, so that the public can Rights to the work are acquired at a chosen time and place. Article 8 of the WCT is entitled "Right of communication to the public" and reads: Authors of literary and artistic works shall have the exclusive right to authorize the communication of their works to the public by wired or wireless means, including the Public Offerings make such works available to members of the public at a place and time of their own choosing. From the above two concepts, we can conclude that the most important feature of "information network communication right" is that it is an "interactive" communication.
In order to easily understand what "interactive" communication is, let's start with traditional copyright. Before the conclusion of the WCT, the Berne Convention had granted authors the "broadcasting right", which is defined as the right to transmit information by wireless (including satellite) and wired means.the right to broadcast the work.
Traditional broadcasting rights have two major characteristics:
First, the dissemination of works is by It is initiated unilaterally by the communicator, and network users can only passively receive it and cannot actively choose the content and time;
Secondly, this type of communication adopts "point-to-point" "Multiple" model, that is, network users are an unspecified majority. For programs broadcast through wireless means, anyone in the signal coverage area can receive them at the same time; for programs broadcast through cable means, subscribers of cable programs can also Can be enjoyed at the same time. Even if some radio stations have a "listeners request songs" column, for the lucky listener who calls in and requests a song, it seems that he has chosen the content played by the radio station, but for other unspecified network users, it seems that he has chosen the content played by the radio station. Still can only passively listen to the on-demand song.
The emergence of the Internet has brought about revolutionary changes in the communication model. The most prominent manifestation of this change is that it can realize "narrowcasting" that is different from "broadcasting". That is, "interactive communication".
"Interactive communication" also has two outstanding features in technology:
First, for The transmission of information content is directly triggered by the behavior of network users rather than communicators. Network users can independently choose the content of information, as well as the time and place to receive dissemination. Because of this, "interactive" communication is also called "on-demand communication";
Second, interactive communication adopts the "point-to-point (P2P)" model , a network user is a specific individual who requests content. Suppose there are 100 movies stored on a server, allowing many users to log in at the same time and select movies for online viewing. Then each user can log in to the server at a time and place of their choice and select a movie for online viewing. appreciate. Users log in to the server at different times and choose different movies. Of course, the content they enjoy at the same time will not be the same. In other words, the transmission of a specific movie occurs between this specific user and the server. It is a transmission between two "points", rather than the server's "point" simultaneously transmitting to countless unspecific "points". transmission. Because of this, "interactive communication" is a typical "narrowcast" rather than "broadcast".
"Interactive communication" is the most fundamental feature of the right to information network communication. The "right to information network communication" in my country's Copyright Law cannot be understood as the name implies. "The right to disseminate works through information networks", but only ""The right to interactively disseminate works through information networks". Therefore, when we judge whether an act infringes upon the right to disseminate information through information networks, whether the act is interactive naturally becomes the basic criterion.
In Case 1, website A placed video A on its website so that network users could obtain the work at a time and place of their personal choosing. This is a typical information network communication behavior (this information network communication behavior refers to The behavior pointed to by the right of information network dissemination, the same below), the website can be deemed to have infringed the right holder’s right of information network dissemination without authorization.
Then, Is the behavior of Website B in Case 2 an information network dissemination behavior? The answer is no. The main reasons are:
1. Play according to the predetermined program schedule works, its communication mode is "point-to-many" rather than "point-to-point". Since network users cannot choose a specific episode, they can only watch the episode being broadcast by the website. At any given moment, any A user logs into website B and enjoys exactly the same content. Internet users cannot freely choose program content for personalized viewing. This kind of online broadcast behavior is different from the TV station broadcasting TV series according to a predetermined schedule. The substantive difference is exactly the same in nature and consequences. The only difference is that the transmission medium used by TV stations is cable or satellite signals, while the website uses network cables or wireless networks;
2. For a TV series that lasts for several episodes, although it can be regarded as a work as a whole, each episode is a relatively independent work. If the network user cannot specify in an individual If you choose any episode to enjoy at the right time, "interactivity" is out of the question.
Obviously, as long as the legislative intent of the "right to information network dissemination" is correctly understood , it is not difficult to draw the conclusion that "fixed episode broadcasting" does not infringe the "right of information network dissemination". So, does "scheduled broadcasting" infringe upon copyright, and what kind of copyright is infringed? Under China's existing legislative framework, The act of "scheduled broadcasting" of TV dramas infringes on the "other rights that should be enjoyed by the copyright owner" stipulated in Article 9, Paragraph 1, Item 17 of the Copyright Law, that is, the blanket clause.
Through the above two cases, we have a relatively intuitive understanding of the "interactive" characteristics of information network communication rights. We can accurately grasp what behavior is information network communication behavior in judicial practice, and then protect the rights holder's information. The right to network communication. However, in order to better protect the right to information network communication, we must also accurately grasp the two principles closely related to the right to information network communication: "Safe Harbor Principle" and "Red Flag Principle".
2. Safe Harbor Principle
When it comes to the "safe harbor principle" and "red flag principle", we still start with two cases.
Case 3: Website C provides information storage space On a video sharing website, a netizen uploaded movie C to website C without authorization. Website C did not edit or organize movie C in any way. The rights holder sent a notice to website C, informing website C that the upload of movie C was unauthorized. After receiving the notice, the website immediately deleted C movie;
Case 4: Ding website is a video sharing website that provides information storage space. A netizen without authorization D movie was uploaded to the Ding website, and D movie ranked third in the "movie rankings" on the home page set up by the Ding website.
First of all, the "safe harbor principle" "The clause originally came from the "Digital Millennium Copyright Act" (hereinafter referred to as DMCA) enacted by the United States in 1998. The "safe harbor" clause means that when a copyright infringement case occurs, when the network service provider only provides space services and does not produce web content , if the network service provider is notified of the infringement, it has the obligation to delete it, otherwise it will be regarded as infringement. If the infringing content is neither stored on the network service provider's server nor informed of what content should be deleted, the network service provider Providers do not assume liability for infringement.
The safe harbor principle consists of two parts, "notice + takedown". Due to the complexity of online content, each network service provider accepts There are millions of information, and it has no ability to conduct prior content review. It is generally presumed that it has no prior knowledge of the existence of infringing information. Only when the rights holder notifies the network service provider of the suspected infringing information, can the network service provider know that there is suspected infringement? content, it should delete the content. After the network service provider deletes the allegedly infringing content, it will not bear infringement liability. However, if the network service provider refuses to delete the allegedly infringing content after receiving the notice, it should bear indirect liability for infringement. Therefore, The adoption of the "notice + takedown" rule limits the indirect infringement liability of network service providers.
On July 1, 2006, China’s "Right of Information Network Dissemination" Protection Regulations (hereinafter referred to as the "Regulations") are officially implemented, and a series of issues including the release, transmission, and quotation of information on the Internet "highway" will be further regulated. At the same time, the "Regulations" also clearly stipulates the dissemination of information network The "safe harbor" principle in the field of human rights is reflected in Articles 14, 23 and related provisions of the Regulations. In addition, Article 12 of the "Administrative Protection Measures for Internet Copyright" issued by the State Intellectual Property Office and the Ministry of Information Industry on April 30, 2005 also stipulates: "There is no evidence that the Internet information service provider is aware of the existence of infringement, or that Internet information If the service provider takes measures to remove relevant content after receiving notice from the copyright owner, it will not bear administrative legal responsibility."
The "safe harbor principle" actually does not There is protection for network service providers who are subjectively malicious. After all, the content on the network is too complex. It is unrealistic and unfair to impose the obligation to review the legality of information network dissemination rights in advance on network service providers. From this, it is not difficult to see that website C in Case 3 immediately deleted the allegedly infringing works after receiving the notice, which complies with the constituent elements of the "safe harbor principle" and does not need to bear liability for joint infringement. Figuratively speaking, the Internet is like the vast ocean, those unauthorized works are like strong winds and huge waves, and Internet service providers are like fishing boats that go out to fish. When the fishing boats receive notification of the impending storm, they can sail into the eternally calm " A "safe haven" from wind and waves.
However, many Internet service providers use the "safe harbor principle" to confront rights holders. In order to avoid the unlimited expansion of the "safe harbor principle" and harm the interests of rights holders, they have The "red flag principle" corresponding to the "safe harbor principle" appeared almost at the same time.
3. Red Flag Principle
In the 1860s, the steam engine began Being used in the transportation industry, people love and fear this powerful machine. In 1865, in order to prevent motor vehicles equipped with steam engines from "endangering public safety", the British Parliament passed a Motor Vehicle Act, which stipulated that all driving motor vehicles must be equipped with a full-time "flagman" who walks in front of the vehicle. 55 meters away, a red flag is held to warn surrounding pedestrians and carriages that the cars are coming! Therefore, this bill is also called the "Red Flag Bill."
With the rapid development of the Internet, a legal theory called the "red flag principle" has also appeared on the information highway of the Internet. The “red flag principle” was first stipulated in the DMCA, and the Regulations also draw on this principle. The "Regulations" stipulate: "Anyone who knows or should know that the linked works, performances, audio and video products are infringing shall bear joint infringement liability." In order to obtain the protection of the "safe harbor principle", an Internet service provider must "not know and have no reasonable reason to know" the existence of infringing works. The “knowingly” stipulated in the regulations is easy to understand. It means that after the rights holder sends a notice to the network service provider, the network service provider knows the existence of the infringing work but still refuses to delete it., they should bear joint liability for infringement.
The "should know" stipulated in the regulations are the specific embodiment of the "red flag principle". Network service providers provide information storage space, and individual network users upload infringing works. At the beginning, the infringing works were buried among many works, but the network service providers used some technical means, such as automatically generating rankings based on click-through rates, or using other technical means to divide the movie works into "action", "comedy", " "Love", "Animation" and other categories, and in the process, the infringing works may rise to the top of the rankings and may be classified into a certain category. At this time, the infringing work will gradually rise like a bright "red flag" and fly in front of the network service provider. It is obviously untenable for network service providers to still cover their ears and claim that they are unaware of the existence of infringing works. In this case, it can be presumed that the network service provider "should have known" about the existence of the infringing works and should bear the liability for joint infringement.
From this, we can judge that in case 4, D movie was placed at the forefront of the "movie rankings" on the homepage by Ding website, and Ding website has no regard for the existence of D movie. It should be known, and it does not have relevant information that D Movies has been legally authorized. Therefore, the Ding website "should know" that the work is infringing and should bear the liability for joint infringement.
Aggregating other people's works onto your own website without permission, using a large number of infringing resources to obtain click-through rates, and then seeking commercial interests, of course requires responsibility. . But we also need to realize that the "safe harbor principle" and the "red flag principle" are not the purpose of copyright law, but only means. The goal of copyright law is to promote the prosperity of culture, not to curb the development of information communication technology. The "Red Flag Principle" is to protect the rights and interests of right holders, but if the "Red Flag Principle" is applied casually, it may affect the development of the entire industry, so we must strictly and carefully regulate its scope of application and further look for better laws. Standardize the plan to balance the comprehensive interests of right holders, network service providers, and many network users, allowing network users to obtain works quickly and cheaply, allowing network service providers to maximize commercial benefits, and allowing rights holders to fully realize their rights and interests. To achieve true harmony.
The law is full of constraints and balances of various values. The two basic principles of information network communication rights and machines perfectly embody this. The above is the relevant knowledge about information network dissemination rights compiled for you by the editor of Legal Savior. If you have any questions, please go to Legal Savior.com for legal consultation.
