The Improvement Of Copyright Secondary Infringement System

This dissertation attempts to construct a new type of secondary copyright infringement,the "authorization infringement".The premise of constructing the "authorization infringement" to improve the system of secondary copyright infringement is that the "authorization infringement" does not belong to direct copyright infringement.There is a distinction between direct and secondary infringement of exclusive rights.Direct infringement is a manifestation of statutory copyright rights.Only by making the rights statutory can the legislative aim of copyright utilitarianism be achieved.The only criterion to distinguish direct infringement from secondary infringement is whether the actor has committed an act controlled by the statutory exclusive right.Although Article 10(2)of the 2020 Copyright Law provides for the "right to authorize" of copyright owners,there is no direct infringement of the "right to authorize".On the one hand,there is a distinction between negative and positive rights in the exclusive right to a work,with the negative right being the expression of exclusive effect and corresponding direct infringement,while the positive right is the expression of the effect of free use,and the "right to authorize" is only a positive right in the exclusive right,which does not have exclusive effect,and the act of the "authorization without right" is not a direct infringement.On the other hand,the exclusive effect of negative rights revolves around the way in which the work itself is used,which is a consequence of the statutory nature of copyright rights.However,the free use effect of positive rights also revolves around the exclusive right itself,which is not related to statutory rights.The fact that positive rights is not related to the statutory right of copyright does not mean that the provisions of Copyright Law on positive rights are meaningless.Article 10(2)of the Copyright Law expressly provides for the "right to authorize" for two regulatory purposes: on the one hand,to show the way in which the copyright owner can use the exclusive right to obtain economic benefits from the work;on the other hand,to highlight the civil rights-based nature of the exclusive right to the work.The "authorization infringement" is not a direct infringement of copyright,but a secondary infringement of copyright.The Article 24 of the Implementing Regulations of the Copyright Law and the Article 24(1)(5)of the Regulations on the Protection of Computer Software together constitute the legal basis for the "authorization infringement".The application of the "authorization infringement" is not limited to computer software.In comparative law,the copyright statute or case law of Commonwealth countries,such as the United Kingdom and Australia,also expressly provide for the "authorization infringement".The legal nature of "authorization infringement" depends on the interpretation of the term "authorization".The authorization in the sense of a de facto act is an act of the contributory infringement in the guise of an "authorization infringement".It is reasonable to interpret the term "authorization infringement" as the contributory infringement.On the one hand,in the context,the meaning of the word "contribution" does not go beyond the meaning of the word "authorization".On the other hand,in comparative law,there are examples including United Kingdom,Australian and US case law,which have interpreted the "authorization infringement" as the contributory infringement.However,such interpretation is more expedient than reasonable in China.In the field of copyright,the most common meaning of the term "authorization" which is in the sense of an act of disposition.The authorization in the sense of an act of disposition corresponds to the genuine "authorization infringement".A copyright owner authorizes the third party to perform an act controlled by an exclusive right is tantamount to creating a right of use in the nature of an absolute right-a "usufruct".The act of authorization is an act of disposition,the constituent element of which is the expression of the intention to authorizes third party to perform an act controlled by the exclusive right.Therefore,if an actor without copyright creates a right of use for another third party through an act of authorization,the act is an act of disposition without right.The liability for the "authorization infringement" is the person who has no right to dispose of the work.Unlike the infringement of a negative right to an exclusive right in a work,the dispossession without right is a nuisance to a positive right in a work,including a behavioural nuisance and state nuisance.The behavioural nuisance is the act of dispossession without right itself,which results in a high likelihood of direct infringement by the third party,so that the copyright owner may assert a claim to exclude the nuisance.The state nuisance is an economic benefit obtained by the dispossessor from the opponent of the act,which,according to the theory of attribution of interest,should have gone to the true copyright owner,and is therefore unjust enrichment,which the copyright owner can claim to exclude by claiming restitution of unjust enrichment.The "authorization Infringement" is found in the field of nuisance law in common law countries.In the law of nuisance,if an actor permits another person to commit a nuisance,the actor commits the "authorization infringement".Firstly,the actor is aware that the act of authorization opens the way for the nuisance to be committed by others.Secondly,the nuisance is a "necessary and natural consequence" of the act of authorization,i.e.there is a substantial causation between the act of authorization and the resulting nuisance.In the field of copyright,the "authorization infringement" is based on the absence of an expression of intent by the copyright owner to grant an authorization.The presence or absence of a right of disposal and the external form of the act of authorization do not affect the determination of whether an authorization is made.A copyright owner may grant an authorization either expressly or impliedly.Where there is doubt as to whether and to what extent an authorization has been given,it needs to be interpreted.The rule of interpretation is that,as a matter of priority,the copyright owner is presumed not to have made the relevant authorization.Secondly,the "normative meaning" of the copyright owner is explored to check the presumption.If the "normative meaning" is the same as the presumption,the presumption will be upheld,and if not,the presumption will be rebutted.In addition,the act of authorization requires a subjective expression of intent on the part of the copyright owner.Similarly,the expression of intent of whether a non-copyright person has made an authorization can be divided into the following five situations: Firstly,where the noncopyright person has made an authorization in an express manner.Secondly,where the non-copyright person has made an authorization by implication;Fourthly,it is unclear whether the non-copyright person has given authorization,and it is presumed under the "purpose of the transfer principle" that he has not given permission,and the "normative meaning" of the non-copyright person is same to the presumption,so the presumption is upheld.Fourthly,it is unclear whether the non-copyright person has given authorization,and it is presumed under the "purpose of the transfer principle" that he has not given authorization,but the "normative meaning" of the non-copyright person is contrary to the presumption,so the presumption is rebutted.Fifthly,if a noncopyright person objectively performs an act of licensing but subjectively lacks the intention to express it,the act of authorization should be denied.The term "authorization infringement" and the contributory infringement are both secondary copyright infringement,but they have different fields of application.On the one hand,if the direct infringement committed by the third party is fair use,the "authorization infringement" should be applied,rather than the contributory infringement,to determine the secondary infringement liability of the actor.The establishment of contributory infringement presupposes that the direct infringement committed by the person assisted is unlawful,whereas the fair use,as a deterrent to unlawfulness,prevents the unlawfulness of the direct infringement and does not establish the contributory infringement.The establishment of "authorization infringement" does not require the third party to perform an act controlled by exclusive rights,but dose the act of authorization by the non-copyright person himself.On the other hand,in cases where users use the services of an ISP to commit an infringing act,the contributory infringement,rather than the "authorization infringement",should be applied to analyze the ISP’s secondary infringement liability.Similar to indirect positive offenders in criminal law theory,the "authorization infringement" emphasizes the control of the act of third party.It is difficult for an ISP to control the infringing act of its users,but only the internet service itself.