In recent years, the rapid development of Internet technology has brought new problems to intellectual property protection. For example, the new technology based on cloud storage has provided users with a large amount of content quickly and conveniently, but it has also caused many video content copyright disputes. Discussion on whether new technology and its application cause unfair competition in the process of innovation. This paper analyzes hot cases from the perspective of copyright protection and anti-unfair competition, especially for unfair competition cases, and explores solutions from the perspective of technology and legal application, hoping to provide some ideas for solving complex intellectual property disputes under the Internet environment.
Sohu Video, Youku Tudou, Baidu, and Fast Broadcast resumed disputes over aggregation platforms, and Tencent, Jinshan, and 360 companies sued each other for unfair competition ... The legal issues of aggregation platforms and unfair competition in the Internet environment have become obstacles that affect the exploration and development of new models in the industry, and are also difficult issues in the judicial protection of intellectual property rights. Recently, at the 5th Beijing Internet Intellectual Property Protection Forum jointly organized by the Intellectual Property Court of Beijing Higher People's Court and internet society of china Mediation Center, industry representatives and judges of the Intellectual Property Courts of Beijing courts at all levels discussed these issues in depth, and put forward "standardizing the aggregation platform from the perspective of unfair competition" and "applying relevant laws to improve the intellectual property review mechanism, reducing and reducing the diversion of interests to the right holders, and promoting the innovative development of the benefit sharing model of all parties".
There are many problems in the regulatory aggregation platform.
The core of the so-called aggregation platform is that the third-party application platform integrates various resources through link aggregation to achieve the purpose of serving users quickly and accurately. The most common aggregation platform is the aggregation of video websites. Some IPTV clients or players provide users with the function of playing and downloading, and most of the content is provided to users in the form of nested links through players, which is also called aggregated video websites in the industry. Previously, the dispute between Sohu Video, Youku Tudou, Baidu and Fast Broadcast was also here. According to reports, nested link is a new technology with the development of cloud storage, and its legal issues are still under discussion in academic and judicial circles.
Regarding the legal relationship between the aggregation platform and users and linked websites, Wu Ji, a judge of Chaoyang District People's Court in Beijing, believes that for ordinary users, they can find what they want quickly, accurately and simply through the aggregation platform. For the platform, users' clicks mean their economic interests, so there is no direct conflict of interest between the two parties. For the obligee, the relationship between the two is divided into different situations. The information stored on the websites linked by some aggregation platforms is infringing, and the links set by aggregation platforms are also unauthorized links. In this case, the obligee can sue both the aggregation platform and the linked website. Because the infringement facts of the aggregation platform are different from those of the linked websites. Some aggregation platforms are authorized to link the information stored on websites, and cooperation agreements have been signed between the linked websites and the aggregation platforms, but the scope of cooperation is beyond the scope of authorization obtained by the linked websites from the obligee. The linking behavior of the aggregation platforms leads network users to obtain information directly from the platforms, which infringes the legitimate rights and interests of the obligee. For the linked website, its relationship with the aggregation platform can also be divided into two situations: in the case of licensing the link, if the link of the aggregation platform is not beyond the licensing scope, it may not involve infringement; If the link is beyond the permitted scope of the linked website, the linked website can sue the aggregation platform based on contract or infringement; In the case of unauthorized linking, the linked website obtains the rights of relevant copyright content, while the aggregation platform directly obtains relevant information, and the linked website can directly sue the aggregation platform without authorizing linking.
According to reports, at present, when the right holder sues the aggregation platform, most of them are regulated by the relevant laws and regulations of the copyright law. Some people think that, in essence, the basis of aggregation platform is link. At present, China's copyright law stipulates that link service providers should bear indirect tort liability on the premise of fault if they know or should know. If the link service provider can prove that he is only providing network services and there is no fault, the "safe haven principle" will apply and cannot be considered as infringement. However, in judicial practice, some aggregated video websites play the content directly after opening, without showing the actual address, jump page and obvious source display of the link, and the characteristics of the link are not obvious. If it can't be proved to be a link, can it be considered as direct infringement? In addition, the aggregation platform can sort out the linked objects, making it easier for users to obtain information. The aggregation platform selects, edits and recommends works. Can it be considered as indirect infringement under the circumstance of "should know"? These problems still need further discussion.
Although most of the existing cases discuss the legal issues of the aggregation platform within the framework of copyright law, some scholars have suggested whether the anti-unfair competition law can be used to regulate the behavior of the aggregation platform in violation of the principle of good faith. In their view, the aggregation platform is actually to use the content resources that other websites may invest a lot of money to integrate into their own websites to attract users' clicks and advertising investment, which is the profit source of most video websites now. Do aggregation platforms and video websites constitute a competitive relationship? The former's behavior encroaches on the resources of other websites. Does it violate the "principle of good faith"? The answers to these questions need to be clear.
On the one hand, the aggregation platform constantly innovates technology, integrates the content of other websites, meets the needs of users to obtain information more conveniently, and obtains economic benefits; On the other hand, the aggregation platform takes advantage of the resources of other websites and occupies the market share of other websites, which may cause these websites to reduce their technical investment and prefer links to the content itself. In the long run, the Internet will lose the motivation and mechanism to create more updated content. Legal experts believe that in the face of the huge potential market and the ever-developing Internet technology, interests and technology should become the driving force for mutual promotion and compromise, so as to achieve win-win cooperation among all parties. For the aggregation platform, whether to form a valuable industrial chain by charging, or to obtain a package of authorization by charging the obligee once, or to adopt other modes remains to be explored by the industry.
It is difficult to oppose unfair competition.
In recent years, the proportion of online copyright cases in intellectual property cases is increasing, and it shows an obvious growth trend. Cases of unfair competition involving the Internet have also increased significantly. According to the statistics of Haidian District People's Court in Beijing, although the absolute number of such cases is not very large at present, it is growing rapidly, controversial and difficult to try and mediate.
According to Cao Liping, a judge of the Intellectual Property Court of Haidian District People's Court, there are four types of unfair competition at present: the first category is search engine bidding ranking disputes, accounting for more than half of the number of unfair competition on the Internet. The second category is disputes related to false propaganda and commercial slander, which belong to unfair competition behavior clearly stipulated in the Anti-Unfair Competition Law. The Internet is an efficient media platform, so the problems of false propaganda and commercial slander are also very prominent in the Internet field. The third category is the disputes caused by the compatibility problems of similar products of Internet companies. The fourth category is disputes caused by business models. Judging from the cases accepted by the Haidian District People's Court in Beijing, such disputes can be divided into two situations: one is that technical measures destroy other people's business models, and the other is litigation caused by copying other people's business models.
According to the analysis of legal experts, there are three main reasons why these cases are difficult to hear at present: there are problems in understanding technology, grasping the market and applying the law.
From the understanding of technology, network technology is changing with each passing day, but the knowledge structure of court judges often lacks the corresponding technical background, and the knowledge and understanding of new technologies are insufficient, which makes the court usually very cautious when trying cases involving browser filtering advertisements, bidding ranking and other technical aspects. Judging from the grasp of market development, most cases of unfair competition on the Internet are brought to court because operators cannot distinguish the advantages and disadvantages of competitive means through normal market competition, and they need to be guided by rules through judicial decisions. It can be seen that judicial rules have played a very important role in the direction of market development and the formation of competition rules. However, it is difficult for judges to evaluate the rapidly changing Internet market with their own understanding of the market economy.
Judging from the application of law, the current application of law is single. Because the ways of unfair competition on the Internet are more and more diversified, which far exceeds the preset situation when the current anti-unfair competition law is formulated. Although the Supreme People's Court has made relevant judicial interpretations on the Anti-Unfair Competition Law, at present, more than half of Internet unfair competition cases can only apply the principle clause of the Anti-Unfair Competition Law, namely Article 2: "Operators should follow the principles of voluntariness, equality, fairness, honesty and credit, and abide by recognized business ethics in market transactions." However, it is often not particularly clear when explaining "the principle of good faith" and "business ethics". In addition, the amount of compensation is also a very prominent issue in cases related to unfair competition. Both parties to the dispute often cannot prove the plaintiff's loss or the defendant's profit by submitting strong evidence, and finally they can only be judged by the judge.
The judge introduced that at present, when the court hears unfair competition cases, it will first examine whether the plaintiff has competitive interests protected by law. It should be noted that the business model itself is not protected by law. For example, Carrefour and Wal-Mart, KFC and McDonald's all operate independently by basically the same business model. This kind of horizontal competition is conducive to providing users with better products and services. However, the legitimate interests brought by the business model belong to the category that can be protected by law, and the parties have the right to claim. Secondly, the court will examine whether there is a competitive relationship between the original defendant and the defendant in the sense of anti-unfair competition law. The market competition under the Internet environment is no longer limited to the competition in the same industry, and whether there is competition between them should be considered from a broader perspective. In addition, the court will also review the legality of the behavior and pay attention to whether the party accused of unfair competition has subjective fault. Only when the actor is subjectively at fault can unfair competition be included in the category of civil tort. In practice, subjective fault is generally manifested as deliberately exaggerating and hypocritical propaganda, which is targeted and discriminatory to the plaintiff, or making development and design that undermines other people's business model in order to meet the short-term needs of some users.
In order to further strengthen the protection of intellectual property rights under the Internet environment, Zhang Xuesong, vice president of the Intellectual Property Court of Beijing Higher People's Court, believes that strengthening the communication and interaction between judicial organs and Internet enterprises will help people's courts to explore the protection of intellectual property rights in the Internet field based on the network environment and the reality of enterprises. Wang Bin, Secretary-General of Internet Association of China Mediation Center, said that as the executive body of mediation of intellectual property disputes in the Internet field, it strives to provide Internet intellectual property services through various forms in daily dispute mediation, and is willing to communicate with enterprises in all fields of the industry to escort the innovation and development of enterprises with special services.
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Difficulties and Breakthroughs in Legal Protection of Internet Intellectual Property Rights
The paperless and intangible characteristics of network intellectual property carrier make network intellectual property more reproducible and less exclusive. The following is a model of papers collected by Bian Xiao to discuss the current legal protection of network intellectual property rights. Welcome to read the reference.
1 Status of legal protection of Internet intellectual property rights in China
Network intellectual property refers to the exclusive right that the obligee enjoys according to law for the innovative intellectual achievements created under the network environment. The borderless nature of the network weakens the regionality of network intellectual property rights. With the development of the network, the object scope of network intellectual property rights has appeared new types, and the protection of network intellectual property rights has also become complicated. For example, on June 20th14th,14th, Sohu sued "Today's Headlines" for1/ten thousand yuan; In the 20 14 th "Sword Net" action, the National Copyright Administration and other departments announced more than 30 cases of Heilongjiang No.1 Education Network infringing the copyright of film and television works. It can be seen that in recent years, online intellectual property infringement cases have occurred frequently. Although China has successively joined many international treaties, such as the Copyright Treaty of the World Intellectual Property Organization (WIPO) and so on 10, these treaties lack special provisions on network intellectual property rights. There are corresponding provisions in domestic legislation. In 2005, the Ministry of Information Industry and the National Copyright Administration jointly issued the Administrative Protection Measures for Internet Copyright. Although it is only about copyright legislation, it is undoubtedly a great progress in legislation as the first network intellectual property law in China. The Regulations on the Protection of Information Network Communication Right promulgated by the State Council in 2006 has played a certain coordinating role in balancing the interests of obligees, network service providers and the public. Article 36 of the Tort Liability Law promulgated in 2009 makes special provisions on the way of responsibility of "network users and network service providers"; 20 1 1 the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the Opinions, which stipulated the standards for the determination of online intellectual property crimes. We are pleased to see that the Supreme Court adopted the Provisions on Several Issues Concerning the Application of Laws in the Trial of Civil Disputes Infringement of the Right to Dissemination of Information on the Internet on 20 12 165438126 (hereinafter referred to as the "Provisions"), in which *** 16 stipulated the right to disseminate information on the Internet. At present, China's network intellectual property legislation is imperfect, which is reflected in decentralized legislation, that is, dispersed to different legal departments, mostly reflected in multi-department joint release or judicial interpretation, and lack of special legislation.
2 the dilemma faced by the legal protection of network intellectual property rights
2. 1 Citizens' awareness of intellectual property protection on the Internet is weak.
Due to historical and cultural reasons, most citizens have become accustomed to using online resources for free, such as QQ, WeChat, various videos and video software, which leads people to be indifferent to the legal protection of intellectual property rights and pay no attention to protecting their rights when using free online resources. The media tend to appreciate the infringing technology of infringers, which undoubtedly encourages the proliferation of network infringement, and those infringers are only complacent about their own technological achievements and addicted to the pleasure of implanting other people's programs, and they simply don't know or realize the illegality of their actions. Moreover, network infringement and crime are not intuitive enough, which makes people's understanding of network infringement of intellectual property rights not in place. Even if they know that they have been infringed, only a few people can really suppress their rights. [1] "Let the infringer think that he has found a free paradise to do whatever he wants online." [2] The network is constantly updated and developed. At present, there is only a little legislation in China, which the public cannot understand and know. China did not pay enough attention to intellectual property protection, and started late. Coupled with the indifference of the public's legal consciousness, network infringement is increasingly rampant.
2.2 The development of network technology has led to new forms of infringement of intellectual property rights.
The paperless and intangible characteristics of the carrier of network intellectual property make the network intellectual property more reproducible and less exclusive [3], which makes the forms of network infringement increasingly diversified, and the network infringement presents new characteristics, involving more and more fields, from the initial copyright infringement to the dispute over the rights of network domain names. Internet infringement cases involve both technical and legal factors, which constantly challenge the judicial practice of online intellectual property rights [4]. The "3Q War Event" in 20 10, the most intense Internet development in China, can illustrate this point. Although China has formulated relevant laws and regulations at present, legislation lags behind the development of network technology because of the conservatism and stability of the law itself. The traditional dichotomy does not stipulate the determination of network tort and tort liability, and the serious lag of legislation will easily lead to insufficient law enforcement, which will also hinder the legitimate rights and interests of obligees from being protected in network tort.
2.3 The identification of online intellectual property disputes is more difficult.
The characteristics of network infringement, such as borderless and strong concealment, make it difficult to find, identify the legal relationship, retain evidence, implement the ultimate responsibility and make legal compensation. The derivation and proliferation of cyber-tool crimes have brought various difficulties to the relevant judicial determination. [5]
The characteristics of paperless, innovative and diversified make the judgment criteria of online intellectual property infringement vague. Evidence plays a very important role and is often the key to the success or failure of litigation. In network infringement cases, the parties need to produce strong evidence of infringement and the amount of claim, but once the evidence proving infringement is deleted, it will not leave any clues.
The update of network technology shortens the time and space distance of information dissemination and complicates the protection of network intellectual property rights. "3Q War" makes online consumers feel uneasy. From the war of words between 360 and QQ, we obviously feel that our rights as consumers have been violated, but we can't define and obtain evidence of network infringement. Only after the two companies reconcile can they enjoy the right to use at the same time.
3. The breakthrough path of legal protection dilemma of network intellectual property rights
3. 1 Enhance netizens' awareness of legal protection of intellectual property rights.
With the rapid development of science and technology and the popularity of the Internet, cyber crime is easier and more relaxed than real crime, which has become a major reason for the frequent infringement of online intellectual property rights. People are at a loss about network infringement and don't know how to use the law to protect their legitimate rights and interests [7]. It is urgent to popularize the knowledge of network intellectual property rights of the whole people, enhance the awareness of legal protection, and strengthen the construction of network morality and the legal publicity of network intellectual property rights. By holding more special lectures, we will actively advocate and encourage the whole people to consciously maintain the network order, and enhance the people's awareness of network intellectual property rights. Law is only an external constraint. Consciously abiding by the law requires the improvement of internal consciousness and self-discipline ability, and can consciously safeguard, resist and crack down on infringement when it is discovered. Only when people's awareness of self-prevention is improved will the problem of online intellectual property infringement be reduced.
3.2 Establish special legislation to protect network intellectual property rights.
At present, the legislation on network intellectual property rights is scattered, lacking of special legislation and low level of legislation, all of which indicate that the legislative adjustment is insufficient. Therefore, it is necessary and necessary to introduce a special network intellectual property law as soon as possible. Internet intellectual property law should include general provisions and specific provisions. The general provisions include legislative purposes and principles, and the specific contents are determined by the specific provisions, which mainly include defining the connotation of Internet intellectual property rights, defining the infringement of Internet intellectual property rights, defining the subject of responsibility, determining the types of infringement, defining the scope of infringement, and defining the liability for infringement.
If the time is not ripe for the introduction of special legislation, relevant regulations can be improved on the basis of existing legislation. On August 3, 2065438, the National People's Congress Standing Committee (NPCSC) passed special legislation and set up a special intellectual property court in Beishangguang, which made the judicial protection of intellectual property more professional and improved the professional level of identifying online intellectual property infringement. Specific improvement measures, such as electronic evidence, can designate professional and technical personnel as the main body of electronic evidence collection; On the burden of proof, network operators can be required to bear certain burden of proof under certain circumstances. For example, when it is difficult for intellectual property owners to prove "illegal gains" and "actual losses", they can also base themselves on their own national conditions and learn from the advanced experience of international network intellectual property legal protection to seek a protection system that is in line with international standards.
3.3 Strengthen law enforcement supervision and industry self-discipline.
Like many problems in China at present, the protection of network intellectual property rights in China also needs law enforcement and supervision mechanisms. On the basis of existing legislation, strengthening law enforcement and supervision can also play a role in protecting online intellectual property rights. The National Copyright Administration has carried out many special actions to crack down on network infringement and piracy, showing us the attitude and practice of the government in cracking down on network infringement cases. With the development of network technology, new types of network intellectual property infringement crimes appear constantly. While cracking down on these behaviors [9], we should also pay attention to regulating the use of works by Internet companies and related websites, strictly enforce the law, be fair and just, increase supervision, and explore the establishment of a long-term mechanism for online intellectual property supervision. Make full use of existing resources, strengthen law enforcement, and actively explore judicial protection of intellectual property rights under the Internet environment. "3Q War"
Hundreds of millions of network users are damaged, and driven by interests, these enterprises will lose the minimum business ethics. Enterprises must be self-disciplined. In the case of the writers' rights protection alliance suing Baidu Library, Baidu emptied some unauthorized works. Network intellectual property protection can not be separated from the full cooperation within the opening ceremony, and only industry self-discipline can achieve the ultimate victory of network intellectual property protection.
refer to
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