On The Dilemmas And Outlets About The Right Of Communication Of Information On Internet

The right of communication of information on internet refers to the right toprovide the public with works by wired or wireless means, so that the public may haveaccess to the works at their chosen time and places. The right of communication ofinformation on internet regulated in Copyright Law of the PRC is facing the followingthree dilemmas, that is, the failure to control the performances of providing works tothe public in LAN through interactive communication, of providing deep-link serviceto allow the public obtaining works directly, of webcasting others’ works regularly orlive. The first reason for the dilemmas is that our country’s Copyright Law fails todefine the meaning of “the public” clearly. Whereas the relevant judicial interpretationmade by the Supreme Court defines “the public” as “non specific persons”. The secondreason is that WCT and WPPT were signed in1996and full account of the influenceon the dissemination (or providing) of works caused by the development of the linktechnology was not taken yet. In order to solve these problems, the theoretical andjudicial circles in our country presented various methods. However, these methodsturned out to violate the statutory principle of intellectual property more or less, andwere beyond the limit of the legislative and judicial authority. At interpretation theorylevel, considering Numerus Clausus principle of intellectual property and thelegislative purpose of Copyright Law, the performances of providing works to specificmajority in LAN and webcasting works regularly shall be controlled by furtherinterpreting the right of reproduction. As for the performance of providing deep-linkservice, the principle of “user standard in principle and technical standard asexception” shall be taken. Moreover, specific conditions shall be distinguished toaffirm that the performance of providing deep-link service actually belongs to the behavior of providing link service technically or the performance of providing contentsof works legally. Thus a further judgment is made whether the former performancebelongs to a direct infringement of the right of communication of information oninternet, and whether it ought to enjoy the safe harbor treatment prescribed in Article23of Regulation on Protection of the right of communication of information oninternet. At legislation theory level, the content of the right of communication ofinformation on internet shall be extended to control the performances of webcastingothers’ works regularly or live; and the principle of “user standard in principle andtechnical standard as exception” shall be adopted. In that case, if the plaintiff couldprove that Internet service providers have appearances of providing works,performances, or audio-visual recordings, the people’s court may affirm that they haveperformed the providing action, unless the Internet service providers could prove thatthey only commit the following acts to the works, performances, or audio-visualrecordings that alleged infringement, that is, the services of providing automatic access,automatic transmission, information storage space, searching, linking, peer-to-peertechnology and so on. In the meanwhile, an interpretation should be given for “thepublic" to make sure a “specific majority" is included.