Research On Judicial Identification Standards Of Deep Link Copyright Infringement

With the rapid development of Internet technology,websites have become a platform for people to obtain,disseminate,and share cultural products.With the development of deep linking technology,network users can browse all works directly on an aggregation platform without downloading multiple computer clients or mobile apps.In this process,there is no jump between web pages.However,as cultural products as works,the emergence of deep linking technology destroys the balance of interests between the author,the chained website,the chained website and the network user,and infringes the author and the chained website’s information network dissemination right(based on the license contract).In order to better encourage authors to continue to create and maintain the legitimate rights and interests of the chained website,it should be regulated by the copyright law.Scholars and judges at home and abroad have conducted intense discussions on how to determine the specific method according to the Copyright Law.In trial practice,the standards of determination that judges adhere to are also diverse and unable to form a consensus.Studying which standard should be applied to determine whether deep links infringe the right of information network dissemination is of great benefit to unifying judicial judgment standards and eliminating the mixed phenomenon of applicable standards in current judicial practice.Through the analysis of literature and group cases,and the comparative analysis of the literature and the opinions of the cases,it can be found that server standards,user perception standards,substantive replacement standards,and new public standards have appeared in judicial practices at home and abroad.Among them,server standards are popular at home and abroad,and scholars have also listed a large number of reasons in order to demonstrate their rationality.However,these reasons are deviated from the facts,and even lack the support of the most basic domestic laws and international treaties;user perception standards are too high.Subjective and confusion theory is not the basis for the determination of copyright infringement;the substantive replacement standard uses the trial logic of anti-unfair competition cases to try copyright infringement cases;the biggest defect of the new public standard is its great uncertainty.The above-mentioned standards are relatively one-sided and cannot match the relevant laws and regulations of my country’s information network dissemination right,and there are more or less loopholes.Therefore,none of the above-mentioned standards should be used as standards for judicial determination of copyright infringement of deep links.The correct approach should be to adhere to legal standards,base on relevant laws and regulations,and carry out reasonable legal interpretations.The essence of information network dissemination right is a kind of exclusive right to control and an exclusive copyright property right.It not only means that the copyright owner has the right to decide whether to disseminate the work through the Internet,but also indicates that the copyright owner has the right to decide what kind of work shall be passed.To whom to distribute the work through online channels or channels.Except for statutory restrictions,any unauthorized use of the work in a manner that is controlled by the right of information network communication is a tort.It is worth emphasizing that the "copyright holder" here includes both the original copyright holder(author)who enjoys rights based on factual creation activities,and the subsequent copyright holder(chained website)who enjoys rights based on the legal act of both parties to use the contract.As long as the in-depth chaining behavior of the chain-setting website improperly increases the communication channels of the work and expands the scope of the work’s audience without the permission of the copyright owner,it should be a violation of the right owner’s control right,which is contrary to the right owner’s will to control the communication,This behavior falls into the control scope of the exclusive right of information network communication right,that is,it should be regarded as a direct infringement of the information network communication right.In judicial practice,the legal standard should be taken as the upper standard of the server standard and other operational specific standards,and at the same time as the only standard for determining the infringement of the information network transmission right.In addition,the identification path of deep link infringement should be further refined.The Supreme People’s Court should give full play to the advantages of the case guidance system and recognize the judgment of the applicable legal standards,so that the legal standards are more operable.The determination of whether deep linking technology constitutes copyright infringement is not a purely factual judgment.Only by taking the identification of copyright as a process of legal judgment can we better implement laws and regulations.