| As the mainstream content of current network communication,short video has greatly promoted the creation and dissemination of literature and art,but the resulting copyright infringement problem is also increasing.The short video platforms play an important role in infringement governance.In short video infringement disputes,the act of uploading infringing short videos by users constitutes direct infringement,and the short video platform that provides users with information storage space services constitutes indirect infringement.For the latter,the duty of care plays the role of infringement determination.However,short video platforms are unique compared to traditional network service providers.On the one hand,the platform’s push of short videos contains autonomous algorithms,and it is worth considering whether the recommendation behaviors including algorithmic recommendations should no longer be simply identified as technology-neutral behaviors;On the one hand,short videos spread faster and more widely than traditional long videos,and the phenomenon of copyright infringement on short video platforms was more widespread than on traditional platforms.This has led to many disputes and differences in the understanding of its duty of care.Therefore,it is imperative to clarify the duty of care and specific standards for short video platforms in the determination of copyright infringement.This paper examines the judicial status quo of the copyright duty of care of short video platforms in the past five years by means of empirical research,and its infringement determination mainly includes the disagreement on whether the short video platform undertakes the duty of review,the confusion of the standards for the determination of the duty of care of the short video platform,and the implementation of "notice-deletion".The dilemma of whether to be exempted from liability after the short video platform’s duty of care is on the rise,the confusion and conflict in the written regulations of the duty of care,and whether there are other duties of care other than “notice-deletion” are the reasons for the above dilemma.To investigate the development status of the copyright duty of care for short video platforms outside the territory by means of comparative research.In the United States,DMCA does not require platforms to undertake active review obligations,and only needs to take necessary measures such as deletion after receiving the infringement notice from the right holder.It does not constitute infringement,but industry autonomy has begun to take corresponding technical measures to actively review it,which invisibly sets a higher degree of duty of care for the platform.In the EU,the latest Single Digital Market Copyright Directive requires platforms to undertake filtering obligations,which has raised the level of their duty of care,but some courts have objected and questioned this in judicial practice.As far as my country is concerned,the management and technical capabilities of the short video platform at this stage have not yet reached the level of being able to withstand a high duty of care and setting an excessive duty of care on it will hinder the healthy and orderly development of the short video industry.Based on this,my country needs to carefully delineate the scope of the duty of care based on clarifying the status quo and dilemma of the copyright duty of care for short video platforms,referring to foreign practices and useful experience.First,reasonably establish the copyright duty of care for short video platforms.In the establishment principle,it is necessary to protect the reasonable interests of the copyright owner while considering the public’s right to obtain information,with the goal of promoting the healthy development of the short video industry,and the delineation of the duty of care should be equivalent to the ability of the short video platform.Regarding the duty of care in advance,the short video platform needs to express the copyright protection rules,filter the short videos uploaded by users that obviously constitute infringement,and perform a higher duty of care for popular works,performances,and audio and video products.Regarding the duty of care afterwards,after receiving the infringement notice,it should respond within a reasonable period,and it should bear a higher duty of care for repeated infringements.Secondly,in terms of the specific identification of the duty of care of short video platforms in copyright infringement,the identification standards for whether to take reasonable measures to prevent infringement are refined,the identification factors for short video platforms’ active selection,editing,recommendation,etc.,and the short video platforms directly obtain economic benefits.The reasons for the identification of interests.Finally,in terms of the application of the "notice-deletion" rule,short video platforms cannot be exempted from liability only by relying on the "notice-deletion" rule,and other duties of care must be fulfilled after fulfilling the "notice-deletion" rule to not constitute infringement. |
