This article was first published in LexisNexis
A few days ago, the Supreme People's Procuratorate issued the "Notice on Printing and Distributing Typical Cases of Procuratorial Organs Punishing Copyright Infringement Crimes in Accordance with Law" (hereinafter referred to as the "Notice"). The Notice selects and compiles six typical cases of punishing copyright infringement crimes in accordance with law, including the "Case of Copyright Infringement by Ke XX", for reference when handling cases. According to the Notice, this batch of cases not only covers traditional fields such as audio-visual works and books, but also involves cultural and creative industries such as assembling toys and script killing. Based on the above-mentioned cases and case-handling practices, the author discusses the issues related to copyright on the Internet.
I. Characteristics and Difficulties of Online Copyright InfringementFirst, all aspects of online copyright infringement are hidden and cross-regional, and the infringement is not easy to be discovered, and the true identity of the infringer is not easy to be confirmed. The network is a virtual space, the user's identity is a virtual identity, there is no fixed time and place for the occurrence of infringement, and some content servers or infringers are difficult to trace overseas, and network service providers such as platforms can also be exempted from liability according to the "safe harbor principle"; Second, the technical means of infringement are updated quickly, the original evidence is easy to be destroyed, and the online content is easy to be damaged and linked, which makes it difficult to collect and identify the evidence of infringement; Third, there are various infringements, in addition to plagiarism that is still completely copied, there are also methods such as P drawings or manuscript washing, and now there are problems in copyright determination caused by AI creation, which makes it difficult to apply and identify the law; Fourth, the consequences of infringement spread rapidly, and even if the infringer deletes the infringing content, it is difficult to prevent the spread of other users and eliminate the impact that has been generated, and it is difficult to determine the scope of infringement and the loss of the right holder.
II. Preservation and Use of Electronic EvidenceIn view of the fact that online evidence is easy to be destroyed, the preservation and use of electronic evidence is particularly important, including evidence of copyright rights and evidence of infringement. According to Article 14 of the "Several Provisions on Evidence in Civil Proceedings", electronic data includes information and electronic documents. Where electronic data is used as evidence, the original shall be provided. A copy of the electronic data that is consistent with the original made by the producer of the electronic data, or a printout or other output medium that can be displayed or identified directly from the electronic data, is regarded as the original of the electronic data. Generally, blockchain technology is used for network forensics in litigation, such as timestamps, truth forensics and other tools. In the Internet Court, electronic evidence can be directly submitted for verification, and other courts have also recognized the evidence of online forensics. Blockchain evidence preservation is the use of blockchain technology to obtain and store electronic evidence, which has the characteristics of credibility and cannot be tampered with, and the court or administrative department can confirm its authenticity and accept it if the other party does not adduce contrary evidence to overturn its authenticity. Network evidence needs to provide the original** or the original carrier, such as replacing the computer or mobile phone and other original carriers do not exist, then it is impossible to prove the pending matters. If network forensics is not used in a timely manner, it will be difficult to prove the facts to be proved if the chat history or web page content is deleted or cannot be opened for a long time. Therefore, it is recommended that copyright owners use online forensics tools to collect evidence in a timely manner. As to whether copyright infringement is constituted, in the case of a huge amount of copyright infringement, it is also possible to collect evidence by sampling, such as the sampling of cases 3 and 5 of the Notice, and the method of appraisal can also be used for the infringing content, the appraisal opinion of Case 1 of the Notice.
3. How to protect copyright on the InternetFirst of all, the identity of the copyright owner is confirmed, and the general evidence includes the original carrier of the copyright, the platform certificate of the first publication, and the identity certificate of the right holder. If you are using a screen name, you need to log in and verify the screen name to confirm your identity. Secondly, the evidence of copyright infringement is collected, that is, the network forensics tool is used to collect evidence in accordance with the standardized procedures, the blockchain evidence preservation certificate is obtained, and the electronic forensic documents are stored. Third, confirm the amount of compensation. The number of views, the number of followers, the number of followers, whether it has been recommended by platform traffic, etc., can support the scope of impact caused by the infringement. Repeated infringement can prove the subjective malice of the infringer, and the court may be requested to increase the punishment. The above evidence of copyright and infringement, including identity, time, scope, etc., all involve Internet forensics. Fourth, if the identity of the infringer has not been verified, a complaint or lawsuit against the infringing platform is filed, and the platform is required to provide the identity information of the infringer. There may be multiple infringing platforms, and it is necessary to collect all-round evidence of copyright infringement information on the Internet. Fifth, the court prosecutes or requests administrative or criminal disposition. The advantage of administrative processing is that it is conducive to the collection of evidence, but civil compensation needs to be prosecuted separately. When the standard of criminal prosecution is met, the criminal punishment is more vigorous and the deterrent effect on the infringer is also greater.
4. Suggestions on copyright compliance on the Internet1. Enterprise intellectual property complianceEstablish an enterprise intellectual property compliance system to protect one's own intellectual property rights on the one hand, and avoid infringing on the intellectual property rights of others on the other. There is now a national standard "Requirements for Enterprise Intellectual Property Compliance Management System" (GB T 29490-2023, which will be implemented from January 1, 2024 and replaces the "Enterprise Intellectual Property Management Specification" (GB T 29490 2013, hereinafter referred to as the "old standard")), and the intellectual property compliance system certification can be carried out. Intellectual property compliance mainly focuses on the basic management of intellectual property, including the acquisition, maintenance, application and protection of intellectual property. The requirements for obtaining copyright are: a) timely registration of the work; b) Clarify the ownership of copyrights such as service works, commissioned works, collaborative works, etc., as well as copyright-related rights; c) keep a record of the creative process of the work; d) Guarantee the authorship's right of authorship. For copyright, first confirm whether it is original, if it is not original, if it is allowed, you need to indicate the author or obtain permission from the copyright owner. In disputes over infringement of the right of information network transmission, the substantive standard is adopted for the review of the defense of legal authorization, that is, whether the defender has the basis of rights in substantive law, and the determination of fault is to examine whether the infringer has fulfilled its duty of reasonable care for the occurrence of the lack of legal authorization. That is, whether there is legal authorization or not affects whether the infringement is established. If there is no fault, the infringer only needs to bear the civil liability for stopping the infringement; If there is a fault, the infringer shall bear the civil liability to stop the infringement and compensate for the losses. If it is a free source or work, or a work that has expired the copyright protection period, it can be used for free. If it falls within the scope of fair use stipulated in Article 24 of the Copyright Law of the People's Republic of China, it shall be used free of charge within the scope. Regularly monitor the status of copyrights that may involve others, analyze possible disputes and the extent of damage to the enterprise, and propose prevention and response plans. Promptly discover and monitor the infringement of intellectual property rights, put forward response plans in a timely manner, and use self-remedy, administrative and judicial remedies to protect intellectual property rights. If the performance chart or design of a competitor is used, it may also be suspected of infringing trade secrets or false publicity, which constitutes unfair competition.
2. Civil, administrative, and criminal means to protect rights
(1) Civil or administrative rights protection
Copyright litigation is generally brought in a basic court designated by the Supreme People's Court with jurisdiction over general intellectual property civil litigation, and the Internet Court has jurisdiction over online copyright infringement where there is an Internet court.
The organs that accept administrative complaints about copyright are the administrative departments for copyright at all levels. After discovering the infringement, the right holder may, according to the circumstances, file a complaint with the copyright administrative department of the place where the infringement was carried out and the result of the infringement occurred (including the place where the infringing copies are stored, the place where the infringing copy is sealed and seized in accordance with law, the place where the infringing server is located, and the place where the infringing sponsor is domiciled or the place where the main place of business is). It should be noted that the infringement involved in the complaint should be an infringement listed in Article 47 of the Copyright Law of the People's Republic of China or Article 24 of the Regulations on the Protection of Computer Software, which also harms the public interest.
If the copyright infringement also involves false publicity, which constitutes unfair competition, the market supervision bureau may also be requested to impose penalties in accordance with the Anti-Unfair Competition Law of the People's Republic of China. If the right holder finds that the infringing copy will be imported or exported from China Customs, it may also request the Customs to take corresponding protective measures in accordance with the Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights.
(2) Criminal rights protection
According to Article 26 of the "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (1)" [Copyright Infringement Cases (Article 217 of the Criminal Law)], the standards for filing and prosecuting are: (1) the amount of unlawful gains is more than 30,000 yuan; (2) The amount of illegal business operations is 50,000 yuan or more; (3) Without the permission of the copyright owner, reproducing and distributing their written works, films, television, video works, computer software, and other works, with a total of 500 or more copies; (4) Without the permission of the producers of audio or video recordings, reproducing and distributing audio or video recordings produced by them, with a total of 500 or more copies; (5) Other situations where the circumstances are serious. For example, the illegal gains of 50,000 yuan in Case 5 of the Notice constitute the crime of copyright infringement, and he is sentenced to 3 years imprisonment, suspended for 3 years, and fined 20,000 yuan. The choice between different crimes applies: Case 4 of the Notice, because the assembled toy in this case is also an aesthetic design, the original artistic aesthetic part can be protected by the Copyright Law as a work of art, and the assembled toy also has a design patent. However, the only crime involving patents is the crime of counterfeiting patents, and the crime of counterfeiting patents requires the marking of the patent logo or patent number, so in such a case, it is the best choice to pursue criminal liability for the crime of copyright infringement.
Case 6 of the Notice may also involve the crime of illegal business operation, but it still adheres to the principle of substantive examination for the characterization of pirated teaching and auxiliary books that are not marked as publishing houses, and does not simply deny the application of the crime of copyright infringement.
The crime of copyright infringement may also involve a trade secret crime (the standard for filing a case is 300,000 yuan), which can be paid attention to together and choose the most beneficial way for the right holder to protect its rights. To sum up, with the rapid development of the Internet, the law is relatively lagging behind, and there are many professional issues involved in copyright identification, evidence collection and rights protection involved in the Internet that need to be solved by the joint efforts of legal professionals.
*: LexisNexis.
Editor: Yoyo