| The rapid development of information networks has caused a huge impact on traditional media,and more and more people are broadcasting their favorite content on demand through the Internet.The programs broadcast by broadcasting organizations faced the passive situation of being carried to the network by third parties in whole or by interception without authorization.To this end,the 2020 Copyright Law adds a new neighboring right of information network dissemination to broadcasting organizations,that is,broadcasting organizations as neighboring rights holders enjoy the prohibition of disseminating radio and television programs broadcast by them to the public on the network without their permission.The starting point for the right of dissemination of information networks of broadcasting organizations was to protect the rights and interests of broadcasting organizations more comprehensively,but there were many problems in the application of the law.First,since the subject matter of the broadcasting organization’s right to dissemination on the network was not clear,the object of the right of dissemination of information network by broadcasting organizations was still pending.The object of the right of dissemination of information networks of broadcasting organizations in our country should be "programs carried by signals".It should be noted that the "program" referred to here does not include works that have passed the 50-year term of protection,and if it is included in the scope of the subject matter of rights,it will have the adverse consequences of eroding the public domain.Second,there was controversy as to whether webcasting organizations were broadcasting organizations.In order to solve the lack of protection of webcasting organizations under the Copyright Law,webcasting organizations should be included in the scope of the right subjects of the right of information network dissemination of broadcasting organizations.Third,due to the lack of clarity in the legal provisions on the right of dissemination of information networks of broadcasting organizations,there were also different views on whether this right was a "licensing right" or a "right to prohibit".This right should be an exclusive right,both the positive power of licensing and the negative power to prohibit unauthorized transmission by others.In addition,China’s Copyright Law has not yet defined "public",and through systematic interpretation,it can be identified as an unspecified person,and this definition clarifies that "one-to-one transmission" is an act of communication to the public from the perspective of contact possibilities.The application of the "new public" criterion needs to be considered on a case-by-case basis.Finally,because the act of information network dissemination is often combined with the act of retransmission,recording and copying,there may be confusion in the regulation.The right of dissemination of information networks of broadcasting organizations protected the delayed interests of broadcasting organizations,while the right of retransmission of broadcasting organizations protected the instantaneous interests of broadcasting organizations.When infringing on the right of dissemination of information networks of broadcasting organizations,there may be acts of recording and reproduction,which will infringe on the broadcasting organization’s right of fixation and reproduction.But there are essential differences between the three.The right of dissemination of information networks by broadcasting organizations was aimed at the act of dissemination,and once published on the Internet,the scope of influence would continue to expand.The right to record and the right to reproduce are aimed at "one act".Therefore,when a broadcasting organization claims infringement of its right of information network dissemination,it may request the infringer to "stop the infringement",but in order to protect its right of recording and reproduction,it must not request "stop the infringement".In calculating damages,the damage that may be caused by the subsequent effects of the act of dissemination over the information network may be taken into account,but the loss caused by the act of recording and the act of copying cannot be calculated in the same way. |
