Research On Tort Liability Of Short Video Platform

As one of the important subjects in the short-video industry,short-video essentially belongs to comprehensive network service providers.The legislation on copyright infringement liability of network service providers is mainly stipulated in the Civil Code,the Copyright Law and the Regulations on the Protection of the Right to Information Network Dissemination,which are scattered and fragmented,and the areas applicable to the determination of copyright infringement liability of short-form video platforms mainly focus on the imputation principles of copyright infringement liability of short-form video platforms,the constitutive elements of infringement liability and the exclusion of liability.In order to better analyse the difficulties in the determination of infringement liability of short-form video platforms,27 cases of infringement disputes on short-form video platforms were selected from the handle case database and used as samples for analysis.Through the analysis,it can be found that in judicial practice,the main dilemma regarding the determination of liability for infringement of short videos is focused on four aspects: First,the application of the principle of attribution of liability for infringement of short video platforms is rigid.At present,when dealing with infringement cases on short video platforms,courts tend to rely excessively on the principle of fault-based liability,resulting in an imbalance of rights and obligations between short video platforms and right holders.Second,the short video platform’s subjective fault determination standard is inconsistent.In the case of the dispute between New Pearvision and Youku infringing the right of audio and video producers,the court of first and second instance adopted different standards in determining whether there was subjective fault of the short video platform,the first instance adopted "shall know",while the second instance adopted "obvious perception of infringement".It can be seen that in judicial practice,the standards for determining the subjective fault of short-form video platforms are relatively confusing.Third,the application of the exclusion of liability for infringement by short-form video platforms is unclear.This is mainly due to the lack of specificity of the "notice-deletion" provisions,the substantive elements of the notice,the effectiveness of the defective notice and other issues are not involved.Fourthly,the criteria for determining the amount of financial compensation for short video platforms are not uniform.The copyright of short video belongs to intellectual property,and it is difficult to determine the direct loss of intangible property,so the court mostly adopts the statutory compensation amount,but because the consideration factors for determining the compensation amount are subjective,resulting in the confusion of the standard for determining the compensation amount.In order to resolve the difficulties in determining the liability for infringement in short-form video platforms,the relevant provisions on infringement by network service providers in other jurisdictions were consulted,including the provisions of the Digital Millennium Copyright Act in the United States,which provides for the substantive elements of notice;the Digital Single Market Copyright Directive in the European Union,which imposes a more demanding filtering obligation on short-form video platforms;and the Personal Data Protection Act in Japan,which provides for a system of disclosure of information about the sender.sender’s personal information disclosure system,all of these experiences provide ideas for improving the infringement liability determination of short video platforms.In order to play the role of legislation for the regulation,control and relief of the short video industry,provide clear guidelines for judicial practice,and promote the orderly development of the short video industry,the following suggestions are made: a.Adjust the flexible application of the principle of fault-based liability.For short video platform tort imputation principle can be applied to the principle of fault liability imputation,supplemented by specific circumstances of the presumption of fault principle amendment.Second,clarify the criteria for determining the subjective fault of the short video platform.Under the premise of safeguarding the development of innovation,the level of the duty of care of short video platforms should be appropriately increased.Third,improve the application of the exemption from liability for infringement on short video platforms.Make detailed provisions for short video platforms to set up infringement complaint channels and improve the criteria for determining effective notice.4.Unify the criteria for determining the amount of economic compensation for short video platforms.In determining the amount of infringement damage by short video platforms,a combination of subjective and objective factors can be used.