The Research On The Infringement Of Copyright Of Video Aggregation Platform

In recent years,the video aggregation platform has adopted a new type of communication technology to present the work in the interface controlled by itself by crawling the works in video websites or playing pages,which not only diverts the economic benefits of video websites,but also actually empties the author’s control over the scope of communication.As a result,frequent copyright infringement disputes have been caused.However,in the judicial practice,the attitudes of the courts are different,resulting in the phenomenon of "different judgments in the same case." An important reason for this is that the copyright infringement of the video aggregation platform involves many technical means,and the theoretical and practical circles have not yet had a clear understanding of the nature of the relevant behaviors to accurately characterize them at the normative level.This paper attempts to analyze the mainstream views of the current theoretical and practical circles,and to provide a relatively objective and enforceable standard for the infringement identification of the behaviors on the video aggregation platform on the basis of clarifying the technical principles and behavioral characteristics of the video aggregation platform.It is hoped that the judicial practice of copyright law can reasonably cope with the impact brought by the technology and promote the healthy development of the Internet copyright industry.This article consists of six chapters.The main contents and structure are as follows:The first chapter is the analysis of the video aggregation platform.The video aggregation platform is the product of the user’s "one-stop viewing" demand.In the light of the behavioral characteristics,the video aggregation platform can be divided into three types:common link platform,aggregated stealing link platform,and framed link platform.The profit paths of the three types of video aggregation platforms are different:the profitability of the common link platform relies on providing an "intermediate" search link service,but the others attract user traffic to achieve advertising revenue.Therefore,although the three types of video aggregation platforms are all network service providers in terms of legal nature,only the common link platform can be considered as a technical service provider and the rest are difficult to make the same characterization.Because the aggregated stealing link platform and the framed link platform can make the resources of the video website on their own interface available for click-to-play,there is no difference from the video website’s using of the works.In doing so,it doesn’t only directly plunder the user traffic revenue of the video website,but also occupies the bandwidth and server resources of the video website which the cost is added of and suffers from the copyright infringement lawsuits frequently.The second chapter identifies the predicament of copyright infringement.At present,the identification of copyright infringement in video aggregation platforms has encountered double dilemma in judicial practice and copyright law theory.The dilemma of judicial practice mainly includes three aspects.First,the application of the general provisions in the Anti-Unfair Competition Law has appeared frequently in the judicial adjudication of copyright infringement of video aggregation platforms,and there has been an overlap for the application of law.However,since the Anti-Unfair Competition Law and the copyright law constitute a complementary relationship,the latter’s law application should be given priority.Second,there is a misunderstanding at the factual level.This paper points out that the law circle has misconceptions about the technical principles of aggregated stealing links and framed links.Using "deep link" to cover them causes widespread confusion in subsequent legal analysis is the crux of the problem.On the basis of studying the professional analysis of the Internet technology community,this paper demonstrates that the aggregated stealing link and the framed link have different technical realization paths,the former is the access to the undisclosed resources,and the latter is the guidance of the open resources.According to this,the term "deep link" should be replaced by "aggregated stealing link " and "framed link" to consolidate the factual basis of the research on the legal issues.Third,the identification of infringing object of copyright infringement is confusing.Only when it is correctly recognized that the video aggregation platform only infringes on the owner’s right to communicate works to the public over information networks,can the object of the infringement be focused.The dilemma of copyright law theory succeeds to the dilemma of judicial practice.The concrete manifestation is that the connotation of the right of communication of information on networks is controversial,and the infringement standards of the right of communication of information on networks are difficult to be united and even conflict.The third chapter identifies the object of copyright infringement.This chapter analyzes the right of communication of information on networks itself.the right of communication of information on networks,introduced from abroad,is the result of China’s fulfillment of the obligations of the WIPO Copyright Treaty.The new " right of communication to the public " in the international treaty is generally regarded as the legislative concept of the right of communication of information on networks.The main purpose of "the right of communication to the public" is to incorporate the new modes of communication caused by Internet technology into the scope of copyright laws in various countries.Therefore,the latter half of the right-"the right of making available to the public" is a completely new provision.Among them,"providing" is the understanding of"Making Available”,and the agreement statement mentions that "providing" should be interpreted as "initial providing behavior".In essence the purpose of the viewpoint is to distinguish the scope of the content service provider from the technical service provider and grant the latter a legal exemption.In order to harmonize national legislation,countries are allowed to choose the legislative schemes they deem appropriate under "Umbrella Solution" to regulate interactive communication.China chose to establish a new right of communication of information on networks which is different from the "rights bundles"consisted of existing rights in the USA and the "public reproduction rights" in Germany.The choice doesn’t affect the regulation nature of copyright law about the interactive communication behavior of contents.After research,the expression of "information network" does not limit the applicable environment of rights,so the expression "right to communicate works to the public over information networks" does not affect the essence of rights.The fourth chapter is the identification of copyright infringement existing standards,including the evaluation of existing standards and application of standards.As for the six existing standards:a.the user perception standard is a subjective standard,not objective or certain;the server standard is a technical standard with time limitations;b.the substantive substitution standard is a competition law standard separating from the logic of copyright infringement trial;c.the substantive display standard’s dichotomy of information network communication behavior is questioned to confuse the enforcement behavior of copyright law with the regulation behavior;d.the control standard is too administrative;e.the dissemination source standard is difficult to interpret the information network communication behavior.The conclusion of the application of the existing standards is that the aggregated stealing link can guide users to access the non-public server,which constitutes an information network communication behavior in any event;the framed link cannot constitute the information network communication according to the server standard and the communication source standard.However,there is no substantial difference in the infringement performance and severity of the two behaviors.It’s not consistent with the legal adjustment function to identify them respectively on the basis of different technical realization paths.The fifth chapter proposes to solve the above dilemmas with the "content display standard".Under the content display standard,what makes the works available to the public via websites or interfaces of mobile devices and enables the public to obtain the works according to their needs at the time and place selected by them constitutes an information network communication behavior.The standard actually puts the key to judgment on the effect of communication,in line with the international convention’s interpretation of "Making Available".At the fact level,it’s more consistent with the technical facts of digital transmission of works.And it also meets the requirement of the absolute protection of rights at the legal level.Thus,it’s an objective standard with feasibility.The fifth chapter also studies the practice of copyright infringement standards,i.e.,identifies the content of infringement of the video aggregation platform under the content display standard.As to whether the infringement falls within the scope of copyright exclusive rights,the copyright infringement can be divided into direct infringement and indirect infringement,and the identification rules of infringement of them are different.There are two conditions for direct copyright infringement:one is to meet the constituting elements of copyright infringement,and the other is that the relevant behavior does not apply to the copyright limitation.The identification of copyright indirect infringement requires the actor is subjective fault,and the developer or transferor of the technology with"substantial non-infringing use" does not constitute a contributory infringement.The conclusion is that under the content display standard,the aggregated stealing link behavior and the framed link behavior constitute direct copyright infringement.If the linked object of the common link behavior is a legally transmitted video website,there is no suspected infringement;if the linked object is a video website that transmits the infringing work and the two are in a cooperative relationship or a profit distribution relationship to provide the content,the ordinary link platform will constitute indirect infringement owing to a breach of the duty of care for higher liability.In addition,the aggregated stealing link platform and the framed link platform will also bear the copyright responsibility for violating the prohibition of copyright law.In terms of the technical measures protection,the technical realization of the aggregated chain stalking behavior determines the inevitability of its illegality;in terms of the copyright mark protection,the offences of the two behaviors of video aggregation platform should be identified case by case.The sixth chapter is the proposal for the identification of copyright infringement.This paper believes that there are two reasons why the copyright infringement of the video aggregation platform cannot be accurately identified.First,the cognition of the exclusive effect of the right of communication of information on networks is incomplete.Second,the understanding of the copyright property interests and the nature of copyright infringement is not comprehensive.The exclusive effect of the right of communication of information on networks is reflected in both "behavior" and "qualification".The copyright owner can not only exclude the use of the content of the same nature of the work,but also has the right to license or transfer the rights.The cognition of content-providing behavior and technology-providing behavior should still return to the essence of the law to adjust the distribution of benefits.Only passive,late-going,and non-controllable behaviors are outside the control of copyright owners;thus,the behaviors of the aggregated stealing link and the framed link are confirmed as the nature of non-technology-providing behaviors.Further to demonstrate that the actors of the above behaviors infringe the exclusive effect of "qualification".In addition,the nature of the above behaviors can be recognized from the perspective of whether it is subject to the interests of copyright property.The essence of the interests of copyright property is the consideration obtained by the copyright owner for the use and the transfer of the work in a particular way.When the object of transfer of rights is a video website,the content of the transfer of the right is mainly the right of communication of information on networks.The effect of the aggregated stealing link behavior and the framed link behavior substantially weaken the proprietor’s ability to license and reduce or even hinder the consideration that the copyright owner can obtain by virtue of "the right of communication of information on networks",which constitutes an infringement to the copyright interest.In summary,it is a correct and reasonable choice to incorporate the above behaviors into the regulatory scope of the right of communication of information on networks.On this basis,this paper proposes that the "content display standard" should be used as a unified infringement standard.