The draft of the request for comments on the Internet which acts constitute infringement of specific provisions

Absrtact: The Supreme People's Court yesterday published the full text of the "Law on the infringement of information network of civil disputes on the application of legal provisions of several issues (draft)", a total of 20, comments on Internet users, network service providers violate copyright acts, especially

The Supreme People's Court yesterday published the full text of the "Law on the violation of information network of civil disputes on the application of legal provisions of several issues (draft)", a total of 20, the opinion of the Internet users, network service providers infringement of copyright acts, especially the infringement of the case to make detailed provisions. According to the draft, only the provision of information storage space, search, link, point-to-point technology and other network services do not constitute infringement, but knowingly or should know that network users violate the right to disseminate information network of the specific facts, still provide services or do not take reasonable measures will constitute infringement. The deadline for soliciting opinions is June 1.

The cognizance of Tort Act

The draft of the request for comments on the Internet which acts constitute infringement of specific provisions, the third article points out: "Internet users, Internet service providers without permission, through the information network to provide other people with the right to work, performance, audio and video products, the people's Court should be given the responsibility of violating the information network transmission rights of civil liability." "" by uploading to a Web server or otherwise, placing works, performances, audio and video recordings in an information network open to the public, so that the public may obtain them by downloading, browsing or otherwise, the people's Court shall determine that they constitute the act of providing the works, performances or recorded video products. ”

The opinion draft focuses on the network service provider's tort, the opinion draft stipulates: Judge whether the Network service provider has the fault, generally should be whether it knows or should know the specific fact that the network user violates other people's Information network dissemination right.

The sixth article of the opinion draft stipulates, "The network service provider advocates that it only provides information storage space, search, link, point-to-point technology and other network services, but there is evidence that its tort works, performance, recording and video products provider, through the division of work and other means of joint implementation of the Act, in line with the common tort elements, The people's Court shall make a decree of its joint and several liability. In addition, the seventh article also proposed: "The network service provider knowingly or should know that its network user infringes other people's information network dissemination right, the people's Court should decide that it constitutes the help infringement behavior." ”

In accordance with the provisions of the draft, the following acts shall be deemed to constitute the act of "providing": by uploading to a Web server or otherwise, in an information network open to the public, enabling the public to obtain it by downloading, browsing or otherwise; The Network service provider has the appearance of providing works, performances, audio and video products, Can be identified as implementing the act of providing, but automatic access, automatic transmission, information storage space, search, link, point-to-point technology and other services except; Network service providers to provide search services, according to a certain technical arrangements for the production of works, performances, audio and video products, snapshots, thumbnails, etc. and to the public, shall be deemed to constitute the act of providing. But allow reasonable use.

Haven principles cannot be abused

The Copyright Act (Amendment) 69th, published before that, for Internet service providers to provide a haven principle, 69th stipulates: "Network service providers for network users to provide storage, search or links, such as Simple network technology services, do not bear the copyright or related rights of information review obligations." If the network user uses the network service to implement the infringement of copyright or related rights, the infringer may notify the network service provider in writing, requiring them to take the necessary measures such as deleting, shielding and disconnecting the link. When the network service provider receives the notice and takes the necessary measures in time, he shall not be liable for compensation, and the network user shall be jointly and severally liable for failure to take necessary measures in time. ”

To prevent Internet service providers from abusing the safe haven principle, the specific provisions of the draft, "through a descriptive paragraph, the introduction of content, such as link works, performance, audio and video products, etc. recommended", "for mainly engaged in infringement activities of third-party websites to provide directional links," through the hit film and television works, Three cases of high prevalence of written works, musical works set list, catalogue, index and providing deep link services will be considered as "constituting an infringement of knowledge". This provision is not good news for Internet service providers.

The draft also stipulates that the network service provider does not take the initiative to examine the behavior of Internet users infringing on the information network transmission rights of others. If the initiative to take relevant technical measures to prevent the infringement of Information Network Transmission Rights Act, it can be used as a fault of the consideration factor. If the adoption of reasonable and effective technical measures, it is still difficult to find the tort, generally not recognized as knowingly or should know.

Identify Network service providers

Duration of measures taken

When the network service provider receives the notice that the obligee meets the requirements of the laws and administrative regulations and fails to take necessary measures such as deleting, shielding or disconnecting the link within a reasonable period of time, the people's Court shall determine the infringing act which is positioned by the notice.

The 18th article proposes that the Network service provider take the deletion, the reasonable period of the necessary measures such as shielding, disconnection and so on should be judged synthetically according to the form of the notice submitted by the Obligee, the accuracy of the notice, the difficulty of taking measures, the nature of the network service, the type and quantity of the work, performance, recording and video products involved. In addition to justifiable reasons, the network service provider shall take the necessary measures within one working day of receipt of the notice complying with the laws and administrative regulations, and the time limit for taking the necessary measures shall not exceed five working days.

Related terms

Eighth the People's Court determines whether the network service provider knowingly or should know that the network user who provides the service violates other people's information network transmission right, according to the specific circumstances of the case, the nature and mode of service provided by the Network service provider and the possibility of triggering infringement, consider the following factors synthetically:

(i) The ability of network service providers to manage information;

(b) The apparent extent of the type, popularity and infringing information of the works, performances, audio and video products disseminated;

(iii) The direct profitability of the network service provider as a result of the dissemination of works, performances and recorded video products;

(d) Whether the network service provider has taken the initiative to select, edit, revise and recommend the works, performances and video recording products;

(e) Whether the network service provider has adopted the technical measures which are generally adopted in the same industry, preventing infringement, and whether it has made a reasonable reaction to the infringement notice;

(vi) Whether the network service provider has taken corresponding reasonable measures against the repeated infringement of the same work;

(vii) Other relevant circumstances.

The supreme law proposes to require the site to be deleted within 1 days

For the request of the draft provisions, without authorization to provide hit film and television works, Network service providers, in addition to legitimate reasons, should receive compliance with the requirements of the notice within 1 working days to take the removal, shielding, disconnect and other necessary measures.