在On the occasion of the 22nd World Intellectual Property Day, the Supreme People's Court, provincial and municipal courts and other research institutions have released a list of the top ten intellectual property cases. Some of the intellectual property cases published by various institutions are typical, innovative, forward-looking and instructive, and there are so many cases that it is indeed dizzying to see in this short "intellectual property publicity week. Only, in each list, cases involving "safe haven rules" selected by different courts or institutions appeared at the same time, and new content was given on the basis of the original "notice-delete", and a consensus was gradually formed. Practice of the interpretation of the text, so that the rules of the safe haven on paper, with the times.

1. Case Collection  

Case 1: "Yanxi Raiders Case"-"Top Ten Influential Cases of New Entertainment in China in 2021"

Beijing aiqiyi technology co., ltd. v. Beijing byte beat technology co., ltd. case of dispute over infringement of the right of information network dissemination of works (case no:(2018) Beijing 0108 min Chu 49421)

Case brief: Beijing aiqiyi technology co., ltd. (hereinafter referred to as "aiqiyi company") enjoys the exclusive right of information network dissemination and rights protection of the work involved in the case "Yanxi strategy" according to law. aiqiyi company found that the defendant Beijing byte beat technology co., ltd. (hereinafter referred to as "byte company") was unauthorized and used information flow recommend technology through its "today's headline" iOS and Android APP during the hot broadcast of the extended drama, the short videos uploaded by users intercepted from the extended drama were disseminated to the public and recommend. Among them, the maximum number of single videos played was more than 1.1 million times, causing serious damage to iQiyi Company, and they were sued to the court.

The court found that: Byte Company has sufficient conditions, ability and reasonable reasons to know the existence of the infringement involved in the case, which subjectively constitutes "should know"; objectively, the measures taken against the infringement do not meet the substantive requirements of effectively stopping and preventing obvious infringement, and have not yet reached the degree of "necessity. Therefore, it constitutes an infringement of help and shall be jointly and severally liable with the user. Byte companies should have a higher duty of care while using algorithmic recommend technology to gain more traffic and competitive advantage.

Case 2: Unauthorized uploading of popular songs by short video platforms for users to record short videos constitutes infringement-"Ten Typical Cases Involving Short Video Copyright in Beijing Internet Court"——"Beijing Internet Court Involved in Ten Typical Cases of Short Video Copyright"

Case Introduction: The plaintiff A company is authorized to obtain the right of information network dissemination of a popular song on the Internet. The short video platform operated by Defendant B Company uploaded the song to the platform music library without the plaintiff's authorization. Users can use and cover the song at will when recording short videos through the platform. In the end, 377000 works on the short video platform used the song, and many users sang the song and recorded and uploaded short videos. These short videos can be played, praised, commented, shared and downloaded, with the functions of shooting the same price and paying for promotion, and about 195000 works used the short videos uploaded by the above users. The plaintiff believed that the defendant's behavior seriously violated the plaintiff's right of information network dissemination of the song, had subjective malice, and caused huge economic loss to the plaintiff. He requested the court to order the defendant to delete all infringing short videos and compensate the plaintiff for economic losses. 75000 yuan. During the trial of this case, the plaintiff confirmed that the defendant had deleted all the infringement short videos and changed the lawsuit request to compensate for economic losses.

The court held that the short video platform submitted to the court the identity information of the network users who sang the songs involved, and it can be determined that the relevant short video was indeed uploaded by the network users. However, considering the direct infringement of providing the involved songs in the music library in the short video platform, combined with the music usage mode of the short video, the short video platform should be able to reasonably realize that network users will use the uploaded involved songs to record and upload short videos, and these short videos can be praised, used and downloaded by other users to expand the transmission range of the involved songs, and should have higher duty of care, but did not take the necessary measures to prevent, subjective fault. Therefore, for the behavior of network users to cover the songs involved in the case and record and upload short videos, if the short video platform does not provide evidence to prove that it is not at fault, it constitutes an infringement of help and should bear the corresponding tort liability.

案Case 3: "Ali Animation Case"-"Ten Typical Cases Involving Short Video Copyright in Beijing Internet Court" (Business Model Affects Fault Identification of Internet Service Providers)

Brief introduction of the case: Company A, the plaintiff, is the copyright owner of the animated short films "Ali's Dream Island, My Cloud", "Ali's Mother" and "Ali's Xinyan" (hereinafter referred to as the works involved). The above-mentioned animated short films are long and short, well-made, beautifully soundtrack and well-known. Defendant B Company is the main body of development and operation of a mobile phone APP (hereinafter referred to as the software involved). The plaintiff's evidence collection found that there were dubbing materials from the works involved and more than 10,000 dubbing videos based on the aforementioned dubbing materials in the software involved. Network users can reward the dubbing video formed based on dubbing materials by recharging the platform for gifts. Accordingly, the plaintiff filed a lawsuit on the grounds that the right of information network dissemination was infringed, requesting the defendant to stop the infringement and compensate for economic losses and reasonable expenses totaling 162000 yuan.

The court found that the act of uploading the accused infringing video by the network user has fallen into the scope of the control of the plaintiff's right of information network dissemination, and the user can obtain reward income for the uploaded infringing video, which is not a reasonable use and constitutes a direct infringement. On this basis, to determine whether the defendant constitutes an infringement, it should be considered whether it is at fault. In this case, the software involved in the case is a mobile phone software that provides dubbing services for the public. The defendant should foresee that in order to enhance entertainment and interactivity, network users will probably choose well-known or classic film and television drama clips to upload. For such work clips, the right holders usually do not upload them to cyberspace for free, and it is difficult for ordinary network users to obtain authorization. In addition, the works involved in the case have a certain popularity, and the defendant directly profits from the alleged infringement video. Therefore, it should be found that the defendant did not fulfill its business model to adapt to the duty of care, there is fault, constitute a help infringement.

Case 4: "Thank you for coming to the case"-"Chongqing Court 2021 Ten Typical Cases of Judicial Protection of Intellectual Property Rights"”

Chongqing Radio and Television Yingdu Media Co., Ltd. and Beijing Aiqiyi Technology Co., Ltd. Dispute over Infringement of Information Network Dissemination Rights of Works (Case No.:(2020) Yu 0192 Minchu No. 7216)

Case introduction: "Thank you for coming" is a youth inspirational program launched by Chongqing Satellite TV. It has won many national awards and has a certain reputation. Chongqing Radio and Television Yingdu Media Co., Ltd. is authorized to obtain the exclusive right of information network dissemination and other rights. beijing iqiyi technology co., ltd. (hereinafter referred to as iqiyi company) department iqiyi website operators. The user nicknamed "Fengzi Entrepreneurship" uploaded the variety show "Thank you for coming to 20160713" on the iQiyi website. When the video was played, there was a watermark of "iQIYI iQiyi" in the upper right corner of the video. At the end of the video content, it was displayed that "the copyright of this column belongs to Chongqing Radio and Television Group (Headquarters) and is not allowed to use it without authorization". In the search of "Fengzi Entrepreneurship" on the iQiyi platform, the search results automatically classify it into "Self-media". Every time you click to play the "Thank you for coming" program work uploaded by the account, the interface shows that iQiyi classifies the program into "Variety Channel". The user also released 3953 videos, including programs such as "Door to Door", "Ordinary People Are Happy" and "Thank You for Coming. Chongqing Radio and Television Yingdu Media Co., Ltd. believed that iQiyi Company and iQiyi users constituted a direct joint infringement of the works involved or instigated or assisted in the infringement, and its behavior violated its right of information network dissemination, so it sued the court and asked iQiyi Company to stop the infringement and compensate for the losses.

The court held that the duty of care of the online video platform should be adjusted according to its business model, users, types of uploaded works, and the cost of review. It is divided into a general duty of care, or a higher duty of care, or even a prior review obligation. Based on the consideration of various factors such as the operating platform of iQiyi Company is a paid video broadcasting website, the uploading users are special "self-media" users, the works involved are TV variety shows with high production cost, and the name of the video involved contains obvious ownership information such as "Chongqing Satellite TV", iQiyi Company should perform higher duty of care, but iQiyi Company should know that the infringement involved has not fulfilled its duty of reasonable care, resulting in infringement, it constituted an infringement of help, and decided that Aiqiyi Company should compensate 1500 yuan for economic losses and reasonable expenses. No appeal was filed by either side after the verdict was pronounced in the first instance.

Case 5: "Douluo Mainland Case"-"Ten Typical Cases of Judicial Protection of Intellectual Property Rights in Chongqing Court in 2021"

Shenzhen Tencent Computer System Co., Ltd., Tencent Technology (Beijing) Co., Ltd., Chongqing Tencent Information Technology Co., Ltd., Beijing Webo Vision Technology Co., Ltd. and Chongqing Tianji Meike Technology Co., Ltd. applied for a case of stopping copyright infringement before litigation (case No.:(2021) Yu 01 Bank Bao No. 1)

Case Introduction: Tencent Technology (Beijing) Co., Ltd. (hereinafter referred to as Tencent Beijing), Chongqing Tencent Information Technology Co., Ltd. (hereinafter referred to as Chongqing Tencent), and Shenzhen Tencent Computer System Co., Ltd. (hereinafter referred to as Tencent Computer) are authorized to obtain animation The non-exclusive information network dissemination rights and rights protection rights of the first, second, third and fourth seasons of the work "Douluo Mainland. The animation works in Tencent video platform broadcast, Department of hit drama. After Tencent video updated the animation work "Douluo Continent", trembles users such as "Remembering San Man Cut" uploaded a large number of videos of "Douluo Continent" almost simultaneously on the trembles APP platform operated by Beijing Microbroadcast Vision Technology Co., Ltd., and the number of broadcasts was relatively large. The sound platform says it will intercept more than 0.264 billion offending videos in 2020. Tencent Computer Company, Tencent Beijing Company and Chongqing Tencent Company applied to Chongqing No.1 Intermediate People's Court for pre-litigation behavior preservation, requesting: Beijing Microbroadcast Vision Technology Co., Ltd. to immediately delete all videos that infringe on the information network dissemination right of "Douluo Mainland" animation works in accounts such as "Remembering San Man Cut" on the tremolo APP; take effective measures immediately to delete all videos in the tremolo APP that infringe on the information network dissemination right of "Douluo mainland" animation works; immediately take effective measures to filter and intercept videos uploaded and disseminated by users that infringe on the information network dissemination right of "Douluo mainland" animation works.

The court held that the "notice-deletion" rule was formulated under specific technical conditions and based on balancing the interests between the obligee and the platform, and that the network service provider was not only obliged to delete the infringement committed by the network user using its platform, but was obliged to take necessary measures such as deletion, blocking and disconnection. The definition of necessary measures is closely related to technological development. When the existing technology can realize functions such as filtering and interception and the cost is affordable, it is natural for the platform to assume the obligation of filtering and interception in addition to deleting existing infringing videos when it knows that new infringing videos are still being uploaded continuously. The content of the necessary measures is not fixed, constant, mechanical, but dynamic, variable and development, must take into account the status quo of technological development and changes in the pattern of interests between the parties. In order to prevent the continuation of the infringement and the expansion of the consequences of the infringement, when the new technology appears and the new technology may be realized, the new technology should be included in the scope of necessary measures. The court then supported the applications of Tencent Computer Company, Tencent Beijing Company and Chongqing Tencent Company.

Case 6: "Phoenix Reading Case"-"Top Ten Cases of Judicial Protection of Intellectual Property Rights in 2021 by Beijing Court" (Case No.:(2020) No. 36141 of Beijing 0491 Minchu)

Brief introduction of the case: Beijing Beautiful Picture Co., Ltd. (hereinafter referred to as Beautiful Picture Company) enjoys the copyright of the photographic works involved in the case. Beijing Tianying Kyushu Network Technology Co., Ltd. (referred to as Tianying Kyushu Company) used the photographic works involved in the case in the "Phoenix Reading" section of its "Phoenix New Media" without permission. Beautiful Vision Company sued Tianying Kyushu Company for economic losses of 6000 yuan and reasonable expenses of 1000 yuan.

During the trial, the court of first instance obtained the copyright registration materials of the pictures involved in the case archived by the Beijing Copyright Protection Center ex officio through the double-link docking mechanism of "balance chain" and "copyright chain", including the original picture, description of right ownership, right guarantee, work description, work registration application form, etc., and carried out cross-chain verification of the block chain. Tianying Kyushu Company recognizes the authenticity of the above copyright registration information.

The court found that, in the absence of evidence to the contrary, the court of first instance found that Meishang Company was the copyright owner of the work involved in the case, and Tianying Kyushu Company used the work involved in the case on its website without permission, so that users could obtain the work at the time and place of their personal choice, which infringed upon the right of information network dissemination enjoyed by Meishang Company over the work involved, and should bear the corresponding tort liability. In combination with the screenshots of the webpage submitted by Meishin Company, whether Tianying Kyushu Company "reprints" does not affect the determination of its use behavior. Tianying Kyushu Company knows that there is a risk of copyright infringement in the use of pictures on its website, and also knows the ways of licensing the works involved, but it has not taken timely and effective measures to avoid infringement or obtain corresponding authorization, and there is a certain subjective fault. The first instance ruled that Tianying Kyushu Company compensated Meishang Company for economic losses of 900 yuan and reasonable expenses of 100 yuan.

2.Comments and summary 

(I) Identification of Network Service Providers

The network service provider does not, of course, determine the subject identity of its network service provider because of the Service Agreement or the platform statement that "only provides information storage and network services", and its tort liability is not, of course, exempt from liability because of the subject identity. The network service provider provides part of the real identity information of the uploaded user in the lawsuit, but does not provide all the real identity information of the uploaded user. Under the plaintiff's infringement claim, the defendant does not provide the real identity information of the corresponding user, and will bear the possible adverse consequences of being regarded as direct infringement.

Finally, the network service provider is not exempt from liability because of the identity of the subject in the statement, but should determine the tort liability according to the nature of the act, the role and the subjective factors. (Judgment of Second Instance of Dispute over Infringement of Information Network Dissemination Right of Works by Youku Network Technology (Beijing) Co., Ltd. and Beijing Baidu Network Technology Co., Ltd., Beijing Intellectual Property Court (2020) Jing 73 Min Zhong No. 155)）

(II) Defects Notification

Notice-deletion is an exemption for network service providers, not an imputation principle. Failure to notify, error in notice, or defect notice does not necessarily exempt the Internet Service Provider from tort liability. The "red flag standard" can make the network service provider still bear tort liability without effective notice.

Even if the infringement notice is flawed, for professional network service providers, multiple notifications and repeated infringements should also cause them to pay reasonable and necessary attention to user infringements, stop and prevent large-scale or serious infringement consequences, and it is not appropriate Just because of the defects in the content of the notice, take a completely ignored attitude.

(III) Comprehensive determination of fault

Article 1197 of the Civil Code stipulates: "if a network service provider knows or should know that a network user uses its network service to infringe upon the civil rights and interests of others and fails to take necessary measures, it shall bear joint and several liability with the network user." The essence of "knowing or should know" is to examine the duty of care of network service providers and the necessary measures corresponding to it.

The duty of care of network service providers should be adjusted according to their business model, users, types of uploaded works, the cost of review, etc. to be divided into general duty of care, or higher duty of care, or even prior review obligations.

The consideration factors of fault include business model, whether it is a popular drama, multiple notifications, repeated infringement, type of intelligent technology, etc. They directly determine the level of duty of care, and even require network service providers to implement prior review obligations under intelligent technology or adopt higher codes such as "copyright chain" to discover and eliminate infringing content.

(IV) Necessary + measures

1. Types of measures

《Article 1195 of the "Civil Code" stipulates: "If a network user uses a network service to commit an infringement, the right holder has the right to notify the network service provider to take necessary measures such as deletion, blocking, and disconnection." In the context of China's joint infringement, the so-called safe haven rule is not a simple notice-delete, the necessary measures are not limited to delete, block, disconnect links, but according to the development of technology, the nature of the behavior, the duty of care to determine the corresponding necessary measures. The general expression of "etc." after notification in article 1195 of the Civil Code implies that the network service provider needs to ensure that the necessary measures are compatible with the duty of care. In the application of the law, the so-called safe haven rule in our country should review the duty of care of network service providers and the necessary measures taken accordingly from the perspective of joint infringement. (Yi Jianxiong: "The" Should Know "of Internet Service Providers from the Perspective of Algorithmic Technology-Also on the Application of Article 1197 of the Civil Code", in Intellectual Property, No. 12, 2021)

In addition to the necessary measures in the safe haven rules, there are prevention, shielding, filtering and other corresponding measures. For example, as for the specific measures to be taken in the "Yanxi Raiders case", the court is not suitable and cannot directly make a request. It should be handed over to Byte Company to formulate corresponding strategies according to the actual conditions of its services and users, make its own decisions, and verify its actual effect in the case, that is, whether it can achieve timely and effective prevention and prevention of obvious infringements and consequences. Byte provides users with not only information storage space services, but also information flow recommend services. Because of the above-mentioned situation of gaining more advantages, benefits and bringing greater risk of infringement, Byte Company should have a higher duty of care for users' infringement than other operators who do not use algorithmic recommend and only provide information storage space services. Of course, a higher duty of care is bound to lead to a corresponding increase in operating costs. However, to avoid the corresponding cost increase of infringement consequences similar to this case, whether it will be unreasonable high, and even affect the normal operation of byte company and even the healthy development of the industry, this judgment needs to be obtained through real data, corresponding evidence and professional analysis. Regrettably, Byte Company failed to provide the appropriate evidence, data and other objective basis for the relevant analysis and judgment in this case. In this case, if it is still determined that the byte company does not have the corresponding duty of care and does not constitute infringement, it is equivalent to seeing that the infringing user enjoys the network service and the byte company obtains commercial benefits, but at the same time, the adverse consequences caused by such obvious infringement will be completely assigned to the copyright owner to bear.This is obviously contrary to the basic rules of the copyright law, and also inconsistent with the relevant laws and regulations and judicial interpretation.

Another example is the "Thank you for coming" case, requiring the defendant to take reasonable measures to prevent infringement will not cause technical obstacles to the defendant's platform or excessively increase its operating burden. Based on the benefits obtained by the operators of online video websites, they are required to conduct necessary audits on the ownership of the film and television works uploaded by users, and take corresponding technical measures to prevent and stop the spread of infringing film and television works. This is the operating cost they should pay and will not Lead to the imbalance of the interests of copyright owners and users, video websites and the public.

2. Effectiveness and timeliness of measures  

The application of the safe haven rule should comprehensively consider the type of work, popularity, market value, network service mode involved in the case, the number and scope of infringement users and documents, and whether other necessary measures have been taken to stop and prevent infringement, and finally determine the actual effect of the measures. Among them, the necessary measures in addition to effective, but also must be timely, have practical effect.

For example, the key to the "Yanxi Raiders case" lies in whether the measures taken by Byte Company have reached the necessary level, that is, whether the effect of stopping and preventing obvious infringement has been achieved. In the case, "since it was the hot broadcast period of the extended drama at that time, the relevant evidence shows that the popularity of the drama and its broadcast volume on iQiyi platform are sufficient to reflect its degree of public attention and market value. However, most of the infringing short videos shown by the evidence were added after August 16, 2018, the peak of the new number of infringing short videos in a single day and the broadcast volume of a single infringing short video exceeding one million through information flow recommend the day after uploading also occurred during this period. Combined with the result that the broadcast volume of 1314 infringing short videos notarized and obtained evidence in only 14 days reached nearly 0.1 billion times, it is sufficient to show that during the period when Byte Company took what it called copyright management measures and actively handled them, there are still a large number of obvious user infringements on today's headline App, which have caused serious damage to Aiqiyi Company, which is the owner of the drama extension. Relevant measures have not achieved the effect of timely and effective prevention and prevention of obvious infringements, thus Byte Company should bear the tort liability.

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