| As the production cost of film and television is usually high,the legitimate video platform usually adopts the way of "advertising + membership" to recover the cost and achieve profits.Therefore,users need to watch advertisements or pay membership fees to the platform to skip advertisements and unlock all episodes before watching audiovisual works such as films and television.Under the combined effect of various factors,users have the demand for removing advertisements and watching for free.Some video aggregation platforms,by destroying or bypassing the technical protection Settings,destroy the membership mechanism set by the legitimate video platform,block or delete the advertisement embedded in the legitimate platform,to meet the needs of users to watch for free.This kind of behavior is different from the previous search engine type link,which is not limited to providing guidance and navigation functions,but also enables users of its platform to watch the audio-visual works provided by the legitimate video platform for free.However,this kind of behavior usually does not play a role in promoting the promotion of video on the legitimate platform,but damages the legitimate rights and interests of the linked websites and relevant right holders,affects their expected income,causes an imbalance of interests,and thus causes a lot of disputes.The "Sword at the Internet campaign" has punished such behaviors,but it is still necessary to correct the source from the civil perspective,analyze the technical principles and benefit distribution mechanism behind it,judge the legal nature of the deep-link behavior of video aggregation platform,sort out relevant legal norms and judicial cases,analyze the judgment ideas,and straighten out the legal regulation path for the deep-link behavior of video aggregation platform.It also discusses some controversial issues in the theory of dispute.First of all,it is necessary to clarify the concepts related to the deep link behavior of video aggregation platforms,so as to delimit the research scope and reduce ambiguity.Video aggregation platform deep link is based on the general deep link on the basis of further superposition technology and evolution,framed link and pirate link these two links are special forms of deep link,framed link is the player address,and the pirate link is the video file address.The deep link behavior of video aggregation platform is a kind of "free rider" behavior,which leads to the imbalance of interests,affects the incentive effect of property rights,and also affects the healthy development of copyright industry in the Internet field.Secondly,the deep link behavior of video aggregation platform involves a variety of regulatory paths.Through the study of relevant cases in the past 10 years,it can be found that the deep link dispute cases of China’s aggregation platform mainly apply three types of legal norms on unfair competition,technical protection measures,and information network communication right.Therefore,it is concluded that the deep link behavior of video aggregation platform does not constitute infringement,belongs to unfair competition,violates the provisions of technical protection measures and infringes on the right of information network communication,and further extends the dispute between direct infringement and indirect infringement of the right of information network communication.In judicial practice,the standards for determining the direct infringement of the right of information network transmission are not uniform,and the requirements for the duty of care of aggregation platforms are also different in indirect infringement cases.There are many factors to examine the duty of care in relevant cases,the core of which lies in the judgment of the control and economic benefit of the deep-link behavior.Thirdly,in order to effectively regulate the unauthorized frame link behavior and chain theft behavior,and leave reasonable space for the traditional search aggregation platform,different identification standards are reviewed,and more reasonable infringement identification standards are sought.Among them,the server standard is limited to the technical model,which is not conducive to the protection of the legitimate interests of the right holder of the work;User perception standards are easy to avoid and are not objective standards;The criterion of material presentation reverses the relationship between providing behavior and presenting effect,judging behavior by effect,which is fuzzy in practice.The criterion of substantial substitution emphasizes the exclusivity of communication benefits,but the term "substitution" is ambiguous,confusing unfair competition with tort.Substantive standards pay more attention to power and economic benefits,and can better regulate the video aggregation behavior of frame link and pirate link type;The right to communicate to the public can be exercised continuously,so there is no "old or new" public.Finally,defining the non-jump framed deep link of video aggregation platform as an information network communication behavior is more conducive to safeguarding the legitimate rights and interests of copyright owners.The substantive provision standard protects the right of information network transmission more closely.In order to avoid excessive restrictions on link behavior and make the restrictions on unreasonable link behavior more in line with the actual situation,it is necessary to "widen".For this reason,the application of implied license system can be discussed.In addition to the analysis from the perspective of judicial application,we can also set up such a right or power as the right to display in the Internet field from the perspective of right construction,so as to adjust and extend the power of the right of information network communication. |
PDF Full Text Request