Entrepreneurship is a race, but be careful of the pits you bury.

Absrtact: At the beginning of 2015, there was a tearing war in the field of online education, and both sides of the war were Baidu and Couba June. First, Couba June accused Baidu in its multiple application distribution channels under the Couba June, the purpose is to support their own project work help. Again, hundred

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At the beginning of the 2015, there was a tearing war in the field of online education, with both Baidu and Couba June at war. First, Couba June accused Baidu in its multiple application distribution channels under the Couba June, the purpose is to support their own project work help. Again, Baidu through the update Baidu Encyclopedia "Couba June" entry to make an official reply, accusing Couba June without permission to crawl Baidu know resources and for commercial purposes, involving plagiarism content up to more than 20 million. And the point of contention between the two sides is that Baidu knows the ownership of content that is produced by UGC form.

The two sides of the tear forced more and more people to begin to reflect on the content of the field of production methods, as well as in the front-end answer tool class products and back-end content producers relationship. Couba June belongs to the photo search problem category products, the user experience is mainly reflected in the accuracy of the photo, and the photo of the accuracy of the search problem = Identification Rate * Search the rate * coverage, including the bank coverage in 3 factors have a very high impact factor.

How to build their own test questions, each answer product is "recount". At present, the most mainstream two methods are UGC and PGC content production. Both UGC and PGC face copyright problems, for example, in the UGC mode, how to evade the legal risk of the user's copying and handling; PGC, in the acquisition of the original test item is the whole network of data, or download data for commercial purposes, are worthy of concern infringement issues.

In the past, entrepreneurs did not devote much attention to the content copyright of the item bank, and the contention focused on technology and operation. And in the current market competition, a variety of search problems in the technology has been difficult to open the gap then the question bank volume on the natural become the focus of this type of product competition. At the same time, this category of products have been achieved in the general volume, the number of users in more than million, the financing round is also mostly in B round, the exploration of business model has intensified the competition degree.

Baidu and Couba June on Baidu know UGC content of the saliva war, opened the K12 answer field content of the prelude. But it's not just that simple thing, it's at least a wake-up call to entrepreneurs: how to avoid legal risks in the entrepreneurial process.

First of all, first on the Baidu and Couba June this matter to say.

(a) Baidu know those things in the end who is it?

3rd of the Declaration on the Right to protection of intellectual property rights of users and third parties:

"For any content that the user publishes to Baidu, users agree that Baidu has free, permanent, irrevocable, non-exclusive and fully licensed rights and licenses worldwide to use, reproduce, modify, adapt, publish, translate, create derivative works, disseminate, Perform and present such content (in whole or in part) and/or incorporate it into any other form of work, media or technology that is currently known or later developed. Also, the user license Baidu company has the right to take any infringement of the subject of legal action (including but not limited to litigation, reports, legal letters, etc.). ”

Article 25th of the Copyright law:

A written contract shall be entered into for the transfer of Rights under article tenth (v) to (17) of this law. The contract of transfer of rights includes the following main elements: (i) the title of the work, (ii) the type and geographical scope of the assignment, (iii) the transfer price, (iv) the date and manner of delivery of the transfer price, (v) Liability for breach of contract, and (vi) Other elements which the parties deem necessary.

Baidu know that the agreement shows that users in the use of Baidu services agree to the above provisions. Therefore, in accordance with the above statement of rights, the user in the enjoyment of copyright at the same time, the work of the use, reproduction, modification and other rights authorized to Baidu know.

The copyright law stipulates that the transfer of copyright must be made through a written contract, and the name of the assignment shall be clearly stated in the contract of assignment. And Baidu knows not, and can not be published on the content of each user to sign a separate copyright transfer contract.

Although the user and Baidu know signed an agreement, but the two parties in the user Agreement on the transfer of copyright law does not conform to the copyright laws, so the parties are not binding.

(b) Baidu is aware of the right to prosecute infringement issues?

"Knowledge" of the protection of the rights of users and third parties to the right to protect a statement 3rd:

User License Baidu Company has the right to take legal action against any infringement of the subject (including but not limited to litigation, reports, legal letters, etc.).

Article 119th of the Civil Procedure Act:

The prosecution must meet the following conditions: (a) the plaintiff is a citizen, legal person and other organization having a direct interest in the case; (ii) a clear defendant; (iii) There are specific claims and facts, reasons, and (iv) belong to the People's Court to accept the scope of civil action and the People's Court jurisdiction.

55th article:

In the case of polluting the environment and infringing on the legitimate rights and interests of many consumers, the organs and organizations under the law may bring a lawsuit to the people's Court.

Baidu is aware of the user agreement with the user, Baidu is aware of the infringement of the third person to take a separate lawsuit and other legal action rights.

According to the Law of Civil Procedure, the parties must have the interests of litigation. And the above analysis can be, Baidu know is not the copyright owner, nor through the transfer of rights and other means of access to copyright-related rights, so do not have the interests of litigation, not the appropriate parties to civil litigation.

The exception of the principle of litigation interests, that is, public interest litigation, according to the Civil Procedure Law, public interest litigation must meet the two elements, one is the case type of pollution of the environment, infringement of consumer rights and interests, and other damage to the public interests of the Act, the second is the initiator of the action of Baidu knows not to have these two conditions, therefore also cannot start the public interest lawsuit.

It seems that Baidu is aware of Baidu's content and there is no legal copyright, there is no infringement of the right to sue Couba June. But does this mean that Couba can use Baidu to know the content and use it for commercial purposes?

(iii) Another possible path of litigation: unfair competition

Because China has not yet announced the rights of the network content or the use of a reference between the Web site norms, so there is no strict sense of which law to regulate Couba June this series of acts. From the existing part of the current, Couba June in quoting Baidu know the content on the two features: full-text and fuzzy labeling clear source (after the answer has a small line of words "from the Internet"). In accordance with the current standard of judgment, that is, the original copyright to apply, Couba June did not violate the law, nor is it a violation of Baidu's right to know.

But the way to sue for copyright infringement is not going to work, but Baidu may try to sue in other ways. Here we can analogy to the public comment on the prosecution of "Love network" case, the case is "love help network" to quote "public comment" in the user evaluation. Comb through the court's decision process:

The first time: October 2008 court judgment, found love help network infringement of the public comment Network Copyright fact set up, request love help network immediately stop its use from the public comment on the content of the network, and pay the public comment network economic losses and related litigation costs.

But then love to help the network filed an appeal, September 2009 The case of the second instance of the decision, because the public comments network and netizens share the copyright and the first instance of the prosecution has flaws, to the public comment on the network without assembly rights for the overthrow of the first instance results.

The second time: December 2009, the public comment network for the second time on the infringement of copyright on the love Network to bring a lawsuit, stressed that according to the public comment on the network registered users signed online agreement, the plaintiff exclusive owner of the public comments on the Web site on the content of the book property rights.

The third time: August 19, 2011, the public comment network third prosecution love help net. The final court hearing that "both sides of the evidence is not enough to prove love network or the public comment network for the industry," the largest, most complete, most professional, the highest quality of the service Web site, according to the rules of evidence in civil litigation, can be found that both sides constitute false propaganda. Second, love to help companies as a provider of search, link services, should comply with the law and relevant industry norms, the use of information on specific industry sites should be controlled within a reasonable range. But love to help the network on the public comment on the content used, has reached the network users do not need to enter the public comment on the network can get enough information to the extent, more than the appropriate reference reasonable limit, in fact, caused by love to network users to provide online comments on the content of the public comments on the corresponding content of the market substitution, Have substantial damage to the interests of Han Tao company. The behavior of the market competition, which is competitive, violates the accepted business morals, disrupts the economic order under the network environment, damages the market competition, and has constituted the unfair competition behavior prohibited by the anti-unfair competition law. ”

(d) In China, how are such problems generally judged?

Having said so much, here's a summary. At present, there are two kinds of copyright litigation for content, one is copyright dispute, the other is unfair competition.

In UGC mode, the copyright ownership of the data uploaded by users is still disputed. In practice, the court generally adopts two kinds of principles, but there are some problems in the two methods of dealing with the problem.

The first principle is to declare in the Platform service agreement that the website is copyrighted (or not copyrighted) to the information uploaded by the user. However, in the case of Reproduction, publication, compilation and other rights, the accreditation platform has the right, so when other websites copy and display the contents of the platform, the court determines that the copyright infringement.

Two points of this approach are debatable.

The question of the attribution of copyright. As mentioned above, under the UGC mode, the copyright belongs to the dispute, the court directly decides to belong to the user or the platform, all have the arbitrary suspicion, easy to leave the logical flaw.

The second is the question of suit. There is a platform (such as Baidu know) statement, users agree that Baidu is aware of the content on the platform of infringement action. And if the copyright belongs to the user, the platform only through the user agreement to obtain the proxy user to bring the lawsuit qualification, its legal theory is difficult to pass, the main body is not suitable.

To step back, there are two important issues, even admitting the agency's qualifications. First, tort liability attribution, since the copyright belongs to the user, the win after the compensation will naturally be attributed to the user, the second is the scope of tort liability, the individual user's copyright infringement benefits are not (users can not be based on their work to obtain a very high interest), it is difficult to achieve the punishment effect

The second principle of the court is to judge the angle of unfair competition. The 2nd article of the Anti-Unfair competition Law stipulates: "The operator should follow the principle of voluntariness, equality, fairness and good faith in the market transaction, and abide by the accepted business morals." From the platform's point of view, any information displayed on the platform constitutes its own competitive capital, and any website that quotes and extracts its contents will have an impact on both sides ' competition without permission. On the other hand, the sharing of the characteristics of the Internet era does not prohibit the mutual reference between websites, even to a certain extent, the value of information on the network is precisely from the process of mutual reference.

Therefore, whether such an unauthorized citation is sufficient to make a judge an unfair competition should be judged by whether such a reference is within reasonable bounds. And whether there are many factors, such as whether or not it belongs to quoted works, whether it clearly indicates the source, the specific content of the reference scope and platform nature, and so on. The principle of this treatment, for the platform, its right base is more clear, conducive to safeguarding the interests of the platform. But because the competition is legitimate judgment standard is biased to subjective, operability is poor.

(iv) How should start-ups avoid legal risks?

To some extent, the vitality of Internet enterprises lies in its openness. The sharing of the Internet has enabled information to be disseminated, and it has gained enormous value by its dissemination. While using the Internet to share characteristics, start-ups often ignore the legal problems. In fact, these hidden dangers are likely to be a time bomb, with the development of enterprises, the impact on enterprises will become more and more significant.

Strategically speaking, in the case of startups, there are a few things to be aware of when dealing with relevant legal issues:

User Agreement

Platform registration or use before the majority of users to agree to the service agreement, from the legal effect, the user agreement represents the platform and the user to establish a contract between the platform in the use of rights and obligations in the process of the agreement. The law has a number of restrictions on the provision of such unilateral provisions, such as the need for a clear indication of the other party's rights and obligations, the restrictions on the rights of each other reasonable reminders. On the other hand, the platform also obtains the user's rights through such an agreement.

From the point of view of the start-up enterprise, in order to realize the platform function and safeguard own benefit, the user agreement should stipulate that the platform has the right of storing, displaying, using, compiling, disseminating and publishing of the uploaded content. These agreements have a reasonable limit on the rights of the user and should not be deemed invalid for breach of the principle of fairness.

User Upload content

User upload content is divided into two categories: first, the user's own original content, that is, the traditional sense of UGC, described above, from the legal analysis, its copyright belongs to the user, the platform can be displayed, transfer, assembly, such as a series of rights. Second, the user uploads the copyright works, such as the other people's articles, poetry and other content uploaded to the platform.

Article 22nd of the Copyright law:

The use of a work in the following circumstances may not be paid without the permission of the copyright owner, but shall specify the name of the author and the title of the work and shall not infringe upon the other rights of the copyright owner in accordance with this law:

(a) To learn, study or appreciate for the individual, the use of works published by others;

(b) In order to introduce, comment on a work or to describe a problem, appropriate reference in the work to a work published by another person;

(c) In order to cover current news, it is inevitable to reproduce or cite published works in newspapers, periodicals, radio stations, television stations and other media;

(iv) Newspapers, periodicals, radio stations, television stations and other media to publish or broadcast other newspapers, periodicals, radio stations, television stations and other media has been published on political, economic, religious issues of current articles, but the author's statement is not allowed to publish, broadcast, except;

(v) Newspapers, periodicals, radio stations, television stations and other media to publish or broadcast speeches at public gatherings, except where the author declares that they are not allowed to be published or broadcast;

(vi) for school classroom teaching or scientific research, translation or minor reproduction of published works for use by teaching or scientific researchers, but not published;

(vii) The use of published works by State organs within a reasonable scope for the performance of their official duties;

(eight) The library, archives, memorials, museums, art galleries, etc. for the display or preservation of the needs of the version of the Museum to reproduce the collection of works;

(ix) Free performance of published works which do not charge the public or pay remuneration to performers;

(10) copying, painting, photographing and recording the works of art which are set up or displayed in outdoor public places;

(11) The Chinese citizens, legal persons or other organizations have been published in Chinese language writing works translated into minority language works published in the country;

(12) To convert published works into Braille. The provisions of the preceding paragraph apply to restrictions on the rights of publishers, performers, producers of audio and video recordings, radio stations and television stations.

The user and the platform are not liable for the reasonable use of the 22nd article of the copyright law. And when the user outside the reasonable use of the scope of uploading other people's copyright works, at this time the platform should take the "safe haven" above the safe haven principle, evade own legal risk. The actual operation can also take the following several ways: the platform in the user Agreement expressly informs the user not to infringe the copyright of others, while the user uploads the display of the works, listed the website statement, that is, the user uploads the work only represents the user's view;

The content production mode of

PGC

In the PGC, relative to the UGC in tort, not face such a great pressure.

Article 16th of the Copyright law:

Where a citizen works for the completion of the work of a legal person or other organization, it is a title work, except as provided in the second paragraph of this article, the copyright shall be enjoyed by the author, but the legal person or other organization shall have the right to use it in its business. The author shall not permit the third person to use the work in the same way as the unit if the work is completed within two years without the consent of the unit.

The author shall have the right of signature, the other rights of the copyright are enjoyed by the legal person or other organizations, and the legal person or other organization may award the author with the following works:

(i) Works of engineering drawings, product design drawings, maps, computer software, etc., which are created mainly by the material and technical conditions of legal persons or other organizations, and are undertaken by legal persons or other organizations;

(b) Laws, administrative regulations or contractual agreement to the copyright by the legal person or other organizations to enjoy the work.

In PGC mode, there are two options for the platform (i.e., the start-up company):

The first is to sign a common labor or service agreement with the original, the original author to deliver the work, at this time, the title of the work is owned by the original author, the platform enjoys priority. At this point, the platform can use the work in the platform scope.

The second is with the original author agreed to a work (or a series of works) of the copyright ownership, the two sides agreed that the copyright to the platform. The full copyright is available at this time.

Under the PGC mode, the right ownership is more definite, from the angle of maintaining the development of the start-up enterprise, the platform should obtain the copyright of the works according to the contract.

Unfair competition Disputes

In (c), it has been mentioned that platforms are highly vulnerable to accusations of unfair competition when referencing other Web content. It is difficult to assert that the act belongs to or does not belong to unfair competition because of the subjectivity of the judge's judgment on the legitimacy of competition.

In this regard, the following points need to be worth the attention of the start-up business:

First, when referencing other Web site content, the reader should be prompted to quoted content. This on the one hand can use the content of different sites to enrich their own platform, on the other hand, it is not easy to copy the pretext of the people.

Secondly, when quoting the content, it is advisable to indicate the original source and URL. From the point of view of respecting other people's labor achievements, it is the lowest moral requirement of Internet-sharing era to indicate its original provenance. The Internet information is so complicated that it provides the value of the enterprise's industry development by classifying different information, and shows that its provenance does not necessarily have a substantial impact on its commercial competitiveness.