Embed Size (px)
Citation preview
A COMPARATIVE STUDY ON THE INTERMEDIARY LIABILITY OF
WEB 2.0 PLATFORMS IN CHINA AND THE EU
Qian TaoSant’Anna School of Advanced Studies
Pisa (Italy)
Qian Tao 2
Four cases ( invented, not real )
3Qian Tao
Qian Tao 4
Legal framework (1/3)
Art.14 E-Commerce Directive is not liable on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent;
or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
Qian Tao 5
Legal framework (2/3)
Art.36 Tort Liability Law (2010) (1) jointly liable due to the failure of taking necessary measures
expeditiously upon receiving the notification of victim (within the scope of further loss )
(2) jointly liable if it knows that the internet user is conducting illegal activity by using its internet service and it doesn’t take any necessary measures
Qian Tao 6
Legal framework (3/3)
The Regulation for the Protection of Information Network Dissemination Rights (for Copyright) (refer to DMCA)
not be liable on condition that: (1) the provider has clearly mentioned its service is information
storage space, and also has publicized its contact info; And (2) has not altered the content provided by the recipient of
the service; And (3) has not known and having no justified reason to know
the illegal content And (4) has not obtained a financial benefit directly attributable
to the content; and (5) upon receiving the notification from the right holder, has
deleted the content
Qian Tao 7
Main concerns
“Neutrality” Test
“Knowledge” Test
Notification requirement
Monitoring standard
Qian Tao 8
EU hosting serviceA mere technical, automatic and passive nature, has neither knowledge of nor control over the information which is transmitted or stored
1.“Neutrality” Test (1/6)
Qian Tao 9
China Storage service (video-sharing site, blog, auction site)
But, online forum is also considered as system manager Provision:(Administrative Provisions on Internet Electronic
Messaging Services) If an electronic messaging service provider finds information on its service system that clearly falls within the scope of contents specified in Article 9 hereof, it shall immediately delete the contents
Case Decisions: shall manage and check their websites, supervise and manage the information
1.“Neutrality” Test (2/6)
Qian Tao 10
1.“Neutrality” Test (3/6)
The website changed the file actually because an advertisement as well as the logo of the site were added on the video.
(Joy Film Ltd v. “6.cn”)
Didn’t mean the website changed the content uploaded by user.
(Ciwen Film&TV Production Ltd v. “56.com”)
Operating mode
AD
LOGO
Qian Tao 11
Setting categories and recommended music didn’t changed the nature of the site as storage service provider. This is to facilitate user access to it and manage the storage location of user-generated-contents. (Longle Culture Ltd v. “m149.com” )
1.“Neutrality” Test (4/6)
Qian Tao 12
1.“Neutrality” Test (5/6)
Each episode uploaded by different person was organized together as a package of the whole season of the TV series. The fact brought the court to induce that the platform had edited and reorganized the files.
Even though the fact didn’t change the status of the platform as a storage service provider, it caused the court to assert the platform had knowledge of those illegal files.
(Leshi Tech Ltd v “56.com”)
Qian Tao 13
1.“Neutrality” Test (6/6)
Profit Issue:
The video clip was free to watch, there was no proof the site got a financial benefit from the video directly, though there was an ad on the web page(Ciwen Film&TV Production Ltd v. “56.com”)
Given that the site gave monetary award to the users whose files got higher numbers of pageview, the court stated that the operation of site was not merely to encourage original works, in fact, it made advantage of the videos uploaded by users to enrich its online contents, and further attract more advertising customers and get profits. Therefore, the site made unauthorized use of other’s intellectual property (Guangdianweiye Film&TV Culture Institute v. “ku6.com”)
Qian Tao 14
2. Knowledge TestThe meaning of knowledge
(1/4)
“actually know” “know” “know or
should know” “know”
EU: actual knowledge
constructive knowledge
China: Know
Intentional: know actually or have reason to know Negligence : should have known (but didn’t know in fact)
Qian Tao 15
EU
a valid notification under national law
constructive knowledge of apparent infringements
other facts indicating the platform has actual knowledge.
Third-party notice or any complaints which don’t meet requirement under national law or under the terms ofuse of the platform (?)
2. Knowledge TestThe source of knowledge
(2/4)
Qian Tao 16
Chinanotice and take-down procedure comes before the “knowledge” test
a valid notification, constructive knowledge of apparent infringements other facts indicating the platform has actual knowledge. Third-party notice or any complaints which don’t meet
requirement under the terms of use of the platform (non-IP case)
2. Knowledge TestThe source of knowledge
(3/4)
17
The claimed infringing video was a well-known film
and moreover it was almost impossible that a common internet user got authorized from the copyright holder to distribute the film online gratis
because it was distributing in cinemas during that period(Huayi Brothers Media Corporation v. “56.com)
According to the terms of use of the platform, it would conduct a spot check at irregular times,
but those files in question had been on the site more than a year. So there was little probability that the platform had no knowledge of the infringing files. (Shengshi Culture Ltd v. “tudou.com”)
2. Knowledge TestThe standard of knowledge
(4/4)
Qian Tao
Qian Tao 18
3. Notification requirement
What
How
Who
IP rights Rights to personality
Qian Tao 19
4. Monitoring (1/4)
No general monitoring obligation
But duty of care(certain types of illegal
activities)
Technical measures
Human intervention
Specifical monitoring obligation
(pedophile, Crime against humanity or hate and racial discrimination
incitement)
Qian Tao 20
For web 2.0 sites (except video-sharing site), court decisions can be summarized as two kinds:
(1)The platform was held to have no obligation to monitor every post based on the enormous amount of information transferred
But a reasonable initial review of user generated contents is still in need.
Whether the content is illegal shall be examined in view of a common people with average consciousness in good faith
4. Monitoring (2/4)
Qian Tao 21
(2) Platform has monitoring obligation only to the pornographic content, anti-government content and the like.
For the information which is not filterable automatically by technical measures, the platform could be held to have no knowledge before it gets notification from victim, except when the illegal content is apparent.
4. Monitoring (3/4)
Qian Tao 22
For video-sharing site:
Provision: Internet Audiovisual Program Service Provider shall be responsible for Audiovisual Programs it disseminates and uploads. (“the Administrative Provisions on Internet Audio-visual Program Services”)
Case decision: who the platform confronted were only its registered users, while that the copyrighter confronted were all internet users, thus, it was more reasonable to request the platform to prevent infringement (Guanshi culture communication Ltd v. “tudou.com”)
4. Monitoring (4/4)
