“neutrality” test on web 2.0 platform for its intermediary liability in copyright cases in china
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“NEUTRALITY” TEST ON WEB 2.0 PLATFORM FOR ITS INTERMEDIARY LIABILITY IN COPYRIGHT CASES IN CHINA
Qian TaoDoctoral student at Scuola Superiore Sant’Anna di Pisa,Italy
LEGAL FRAMEWORK
Tort Liability Law 2010 Regulation for the Protection of Information
Network Dissemination Rights (2006)
the “safe harbor” requires the web 2.0 platform in question to be neutral without involvement with third-party content.
INTERPRETATION
Operating model analysis----- to examine whether the platform has changed the content generated by its user.
Financial benefit analysis ----- to examine whether the platform has obtained a financial benefit directly attributable to the infringing materials
OPERATING MODEL ANALYSIS
Case decisions focus on the following features:
the site’s logo displaying on the video, advertisement added to the video,
the video category and recommendations. Waiting time after video being uploaded
CASE 1:SHUREN TECH.LTD V “YOUKU.COM” (2008)
the court noticed that after clicking the video file, there was a short break when the logo “Youku” displayed before the video, moreover, the logo “Youku” was added on the upper left of the video when the video was playing.
Based on this fact, the court held the website changed the file as it was apparent the logo was not added by users; instead, it was added by the site or added automatically by pre-set software.
CASE 2: CIWEN PRODUCTION LTD V. “56.COM” (2009)
On contrast, in the Ciwen Production Ltd v. “56.com”, the court held that the sign “56.com”, which appeared when the video was loading before playing, didn’t mean the website changed the content uploaded by user.
CASE 3: WANGSHANG CULTURE LTD V. “POMOHO.COM” (2008)
an advertisement displayed on the bottom when the video was playing.
The court held even though the ad was preset into the video-player of the site, it demonstrated that the site had altered the file uploaded by internet users.
CASE 4:LONGLE CULTURE LTD V. “M149.COM” (2006)
the court asserted that selecting recommended music and making categories didn’t changed the nature of the site as storage service provider.
The site didn’t change actually the content. What it did is to facilitate user access to it and manage the storage location of user-generated content.
CASE 5:LESHI TECH LTD V “56.COM” (2010)
the operating mode may not indicate the user-generated content has been altered, but it may indicate the site had knowledge of the infringing content.
GUIDING OPINIONS (HIGHER COURT OF BEIJING )
In order to harmonize different opinions of courts in Beijing, the Higher Court of Beijing has issued a guideline in May 2010 which is called as:
Notice on Issuing the Guiding Opinions (I) on Several Issues Concerning the Trial of Cases Involving Copyright Disputes in Cyberspace (for Trial Implementation).
GUIDING OPINIONS (HIGHER COURT OF BEIJING )
The guideline states that the following acts shall not be deemed “alterations” of user-generated
content: (1) only altering the storage format of content; (2) adding website marks such as digital
watermarks to content; and (3) adding advertisements to the beginning or end of the audio-visual
content or inserting advertisements in the audio-visual content.
FINANCIAL BENEFIT ANALYSIS
No direct financial benefit (Even though there is ads on the webpage, but there
is no direct financial benefit because the video clip was free for internet users to watch)
advertising benefit got from advertisement added on the video?
No Implied direct financial benefit (the infringing materials strengthen the
attractiveness of the site. The worse the infringing activities are, the more online customers there are, and the higher the business value of the platform is)
CASE 1: GUANGDIANWEIYE CULTURE INSTITUTE V. “KU6.COM” (2008)
the site gave monetary award to those users whose files had attracted the greatest viewership.
the court stated that the business model of the site was not merely to encourage original works and to provide a platform for podcast fans, in fact, it made advantage of the videos uploaded by users to enrich its online content, attract more users’ focus, increase its page view, and further attract more adverting customers and thereby obtain more advertisement profits.
Therefore, the site made unauthorized use of other’s intellectual property.
CASE 2: FANG SIYU V. “BBS.BAIZHAN.COM.CN” (2007)
the judge contended that the free e-books for downloading on the discussion forum were to attract device users’ attention and further promote the sales of the device.
The number of e-books on the site could affect the number of potential advertising customers. Thus, the forum, as a platform for e-reader device sales, was held to have obtained profit from the dissemination of e-books.
GUIDING OPINIONS (HIGHER COURT OF BEIJING )
The guiding opinions of the Higher Court of Beijing provides that:
The advertising fees charged by an internet service provider for the information storage space service shall not be determined as the directly gained economic interests;
the advertisements added by an internet service provider to specific content may be taken into account in determining the fault of the internet service provider.
MORE NEED TO DO......
The guideline would give reference to all courts in Beijing for copyright cases concerning online infringement. However, it is not enough.
On one hand, it has no legal force; on the other hand, this is only for courts in Beijing.
Given that online infringement may result in jurisdiction of several courts, an interpretation from the Supreme Court of the State is in need.
MORE TO DO ......
In terms of other cases, such as trademark, privacy, defamation etc, there is no clear answer whether the operating model and remuneration of a web 2.0 platform could have influence on its neutral status or could imply that it had knowledge of the illegal activity or information, and further lead to its liability for user-generated content.
