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In 2016, Youku Network Technology (Beijing) Co., Ltd. (hereinafter referred to as Youku Company) discovered that Shanghai Phantom Electric Information Technology Co., Ltd. broadcast "Deyun Sheyi Yi Wei Nian Sealing Celebration 2016" (hereinafter referred to as the program involved) on its "Bilibili" website (hereinafter referred to as "Station B") developed and actually operated by Shanghai Phantom Electric Without permission (hereinafter referred to as the "Phantom Company"), and sued Phantom Power Company in court.
Recently, the Beijing Intellectual Property Court rendered a final judgment on the dispute over the right to disseminate information networks, finding that Phantom Power Company had infringed Youku's exclusive information network dissemination right for the programs involved in the case, and ordered Phantom Power Company to compensate for economic losses and reasonable expenses totaling 100,000 yuan, that is, upholding the first-instance judgment.
It is worth noting that in this case, in response to Youku's allegations, Phantom Power Company believed that Station B was a short video sharing website, and the content uploaded by users should apply the "safe harbor principle", but this claim was not supported by the court. Some insiders believe that the warning significance of the case is that network service providers should pay attention to avoid situations that may be identified as "should be known", should have a higher duty of care for popular film and television works in daily operations, and should conduct a comprehensive review of their own business models, and should promptly delete infringing works on the platform after receiving the infringement notice from the right holder.
Broadcasting the program sparked controversy
It is understood that Youku was founded and officially launched in June 2006, and is now the core user engine of Alibaba Culture and Entertainment Group. At present, Youku supports PC, TV, mobile three major terminals, with copyright, self-made, co-production, self-channel, live broadcast and other content forms, Youku company is the operator of Youku network.
Founded in June 2009, Station B is a highly gathered young people's cultural community and video platform. Station B has animation, drama, national creation, music, technology and other content partitions, and opens live broadcasting, game centers, peripheral and other business sectors. Phantom Power Company is the operator of Station B and the developer and operator of the website's Android client.
In 2016, Youku purchased the program involved in the case and obtained the exclusive information network dissemination right of the program involved in the case. Youku said that it found that it used An Android mobile phone to download the "Bilibili Animation" Android client, search for "Deyun She's unbox" after installation, and the first search result showed the program involved in the case, the cover picture had the name of Deyun Society, and the front line below it was three videos, and the content of the three videos was played continuously, which was the content of Youku's complete program. Youku Company believed that the above-mentioned acts of Phantom Power Company seriously infringed its legitimate rights and interests, so it sued Phantom Power Company to the Beijing Haidian District People's Court (hereinafter referred to as the Haidian Court), requesting the court to order Phantom Power Company to compensate for economic losses and reasonable expenses totaling 200,000 yuan.
In this regard, Phantom Power believes that the company is a network service provider, and Station B is a short video sharing website, which is uploaded by users. The right side of the page of the program involved in the case displays the uploader information, and the label is also set by the user himself, which is difficult for the magic power company to notice. The program involved in the case has not been edited by the magic power company, there is no classification, the safe harbor principle should be applied, Youku company deleted without prior notice, and the magic power company should not bear the infringement liability.
Both courts ruled for infringement
After trial, the Haidian court held that Youku Company obtained the exclusive information network dissemination right of the program involved in the case through authorization, and Phantom Power Company failed to fulfill the corresponding duty of care, and its behavior infringed on the legitimate rights and interests of Youku Company. Accordingly, the company was ordered to compensate Youku for economic losses and reasonable expenses of 100,000 yuan, and rejected Youku's other litigation claims.
Dissatisfied with the first-instance judgment, Phantom Power Company appealed to the Beijing Intellectual Property Court, saying that the first-instance trial was too high, it was of a platform nature, and the notice deletion rules should be applied.
After trial, the Beijing Intellectual Property Court held that the app involved in the case sponsored and operated by The Magic Power Company belonged to the network service provider and should only bear legal liability if it should know or knew that the network user should have used the network service to infringe on the right of information network dissemination of others. In this case, the three videos were the entire content of the program of the program that was played continuously, and each video played for a long time, and the name uploaded by the user was similar to the main part of the program content. Based on this, it can be inferred that the Phantom Power Company should be able to reasonably realize that the network user provided the works, performances, audio and video recordings involved in the case without the permission of the right holder, and the Phantom Power Company did not submit evidence to the contrary, so the court of first instance found that the Phantom Power Company had not fulfilled the corresponding duty of care, and that it should have known or known that the network user had used the network service to infringe the right of information network dissemination, and should be supported.
On the question of whether the amount of economic compensation and reasonable expenses determined by the court of first instance was appropriate, the court of second instance held that Youku Company did not provide sufficient evidence to prove its actual losses, nor did it have sufficient evidence to prove the illegal gains of Phantom Power Company, and in this case, the court of first instance did not improperly adopt the method of statutory compensation.
In summary, the court of second instance ruled to reject the appeal and uphold the original judgment.
Strengthen review to reduce risk
In this case, Station B claimed that it was a network service provider and applied the "safe harbor" principle, but this claim was not supported by the court.
In this regard, Bai Xiaoli, a lawyer at Beijing Anli Law Firm, pointed out in an interview with China Intellectual Property News: "In this case, the key to whether Station B can apply the principle of 'safe harbor' lies in whether Station B's act of uploading infringing works to users subjectively belongs to the situation that 'the network service provider does not know and has no reasonable reason to know that the works, performances, audio and video recordings provided by the service object are infringing'. Both courts held that Station B's failure to exercise reasonable care was a situation where there were 'reasonable grounds to know' that its service recipients had infringed but failed to stop them, so the 'safe harbor' principle did not apply. ”
In judicial practice, under what circumstances can the "safe harbor" principle be applied?
Bai Xiaoli introduced that the "safe haven" principle originated from the "Digital Millennium Copyright Act" in the United States in 1998, which mainly means that the network service provider should delete, block or disconnect the link of the allegedly infringing work within a certain period of time after receiving the notice of the right holder, and the network service provider who takes the above measures and fulfills the duty of care can be exempted from liability for compensation. Article 36 of China's Tort Liability Law and Article 22 of the Regulations on the Protection of the Right of Communication on Information Networks both make relevant provisions on the principle of "safe haven". In current judicial practice, the application of the "safe harbor" principle to exempt the platform from liability for compensation requires the following conditions: the network service provider does not have "knowing" or "should know" the relevant content or behavior to constitute infringement, and there is no subjective fault; there is no change, active recommendation, editing (such as adding tags or pinning, etc.), modification and other acts of the work in any form; it does not obtain economic benefits from the user's upload or sharing behavior, or encourages or connived at the user's above-mentioned behavior by other means and means After receiving the infringement notice from the right holder, the removal obligation was performed in a timely manner.
So, how can network service providers correctly apply the "safe haven" principle in their daily operations to effectively reduce the risk of infringement?
In this regard, Bai Xiaoli gave three suggestions: First, network service providers should have a higher duty of care for popular film and television works, and suggested that a high degree of prevention system be established for popular film and television works, and certain technical measures should be taken to strengthen prevention, such as keyword blocking for popular film and television works; the second is to conduct self-examination of its own business model or conduct compliance review through external professional lawyers to determine whether the company itself has changed, sorted out, recommended, and highlighted works in the platform. As well as whether there are other circumstances in the company's business model that may lead the company to be found to be "reasonably reasonable to know about the infringement of the works on the platform"; the third is to promptly delete the infringing works on the platform after receiving the infringement notice from the right holder. (Sun Fanghua)