“Copyright Law” welcomes amendments to focus on 4 new types of copyright issues

“Copyright Law” welcomes amendments to focus on 4 new types of copyright issues

This year coincides with the 30th anniversary of the promulgation and implementation of my country’s “Copyright Law”, and “426” is also the 20th World Intellectual Property Protection Day. The Copyright Law was enacted in 1990. In 2001 and 2010, due to domestic economic and social development and changes in foreign environments,[1]For example, “Sino-US WTO accession negotiation” has been revised twice. With good law and good governance, in the past 30 years, the law has guaranteed my country’s online copyright industry, and it has become the second largest market in the world. In 2018, the market size reached 742.3 billion yuan.[2]As time changes, at the end of this month, the Standing Committee of the National People’s Congress will review the draft amendment to the Copyright Law for the first time, focusing on resolving the new Internet copyright issues that have been disputed by all walks of life.

“Copyright law is the son of technology.” The latter has mushroomed, from printing, to broadcasting, the Internet, to artificial intelligence and cloud services, and is the catalyst for innovation in copyright law. The self-driving force of domestic industrial development, the exogenous force of international coordinated protection, and the balance of interests based on public domain institutional considerations determine the future direction of copyright law. The main reason for this revision is to adapt to the independent needs of my country’s domestic industrial development.[3]It will face the challenges brought by the development of the Internet to the application of the Copyright Law. There are important performances in the following areas.

  1. Is artificial intelligence the “mechanical arm” of creation or the “brain and soul”

At present, artificial intelligence has covered news writing, picture generation, video and music creation, as well as various cultural content fields such as virtual singers, celebrity face-changing, and intelligent content distribution. According to Narrative Science, in the next 15 years, more than 90% of press releases will be created by artificial intelligence.[4]However, regarding the copyright protection of artificial intelligence-created content, there are legislative gaps and judicial determination disputes. For example, in the case of “Film v. Baidu” in May 2019, the Beijing Internet Court held that the “Welken Kluwer Case Analysis Report” involved in the case was automatically generated by a program supported by a database, and had neither individual characteristics nor originality. Another example is at the end of 2019, in the “Tencent v. Yingxun” case, Shenzhen Nanshan Court held that the creation process of the works involved met the conditions for the protection of written works under the Copyright Law, and had certain originality.

The creation of artificial intelligence is mostly organized by Internet companies, and it is essentially a natural person or a legal person who creates creations under the guise of things. Our common automatic creations, such as intelligent poetry writing, financial and sports news writing, are all of this type. This type of creation mainly serves the needs of large-scale and personalized content production, and its realization relies heavily on data and algorithms. It can be said that data is “source of living water”, and algorithms are “mechanical arms”, but human beings are the “brains and brains” of creation. soul”. This is in line with the requirements of the Copyright Law to protect human creations. In the era of intelligent media, artificial intelligence can realize completely intelligent content creation, but whether to protect the content created by artificial intelligence is a problem faced by all countries in the world. In May 2016, Japan’s “Intellectual Property Promotion Plan 2016” was already discussing the possibility of copyright protection for content created by artificial intelligence. my country’s copyright law is the product of “Western learning to the east”, and the “Copyright Law Implementing Regulations” interprets works as: “intellectual creations that are original in the fields of literature, art and science and can be reproduced in some tangible form.”

Controversies over content created by artificial intelligence mostly focus on the “original nature” of the content. For example, Professor Wang Qian of East China University of Political Science and Law believes that the content created by artificial intelligence “is the result of applying algorithms, rules and templates, and cannot reflect the unique personality of the creator”.[5]Different from Professor Wang Qian, Professor Yi Jiming of Peking University advocates, “The principle of forehead sweating should establish an objective standard for originality judgment, and integrate intelligent works into the traditional copyright analysis framework. It is actually a kind of artificial intelligence on design copyright. interpretive works”.[6]In addition, the creative behavior of artificial intelligence relies heavily on data sources. In addition to its own data content, once intelligent writing involves the acquisition and use of other people’s databases and website data, authorization from a third party should be obtained as appropriate, otherwise it will face copyright infringement accusation. For example, Qin Jian, the author of the hit drama “Splendid Weiyang”, was accused of using “writing software” to plagiarize 219 works. After more than two years of rights protection, 12 writers sued “Splendid Weiyang” for plagiarism and won all cases.

  2. Is the game live broadcast “fair use” or “infringing Gu Amo”

“Copyright Law” welcomes amendments to focus on 4 new types of copyright issues

The copyright dispute of game live broadcast was brought to the forefront in 2019 due to the series ban, but it is not a new problem. In disputes related to game live broadcasting, players broadcast their gameplay on the Internet, or edit and post highlights of their games on short video platforms. Is this act of infringement or fair use? This is not fundamentally different from the previous years when users edited film and television works, uploaded and played them on the UGC video platform; it is similar in nature to the prosecution for “Gu Amo will take you to watch X movies in X minutes”. In fact, foreign game companies such as Nintendo, Ubisoft, EA, Blizzard, and Microsoft will establish an orderly win-win situation with game live broadcasts, short video platforms, commercial anchors, and ordinary users through “partner” programs and other methods. Relationship.[7]

Under the framework of contract law, the terms of use of the Chinese version of World of Warcraft clearly stipulate that users are not allowed to copy the game in whole or in part, develop derivative products, etc. without permission, otherwise the service will be stopped and may be subject to legal responsibility. Blizzard Entertainment also has clear licensing requirements for “community events” and “custom events” for e-sports competitions.[8]In China, Tencent, NetEase and other companies also stipulate in their license and service agreements that users are not allowed to disseminate game content in any way without authorization, including the game as a whole, game elements, and continuous images of the game running. In the court’s series of injunctions, the court clearly requires the live broadcast platform to not conduct the game live broadcast business involved without authorization. Prior to this, in 2016 and 2017, Douyu Live and YY Live were both sentenced to pay 1.1 million yuan and 20 million yuan respectively because they were not authorized.[9]

The game live broadcast behavior of commercial anchors is highly commercial, and reproduces a large number of game works, including game continuous pictures and game elements. Some viewpoints believe that live game broadcasting has high conversion and is a fair use of game works. This view is debatable. The analogy of “adaptation”, such as adapting “Breaking the Sky” into a comic, animation, or movie of the same name, is obviously highly transformative, but this behavior is not “fair use”. If so, the “pan-entertainment adaptation market” on which the online copyright industry depends will collapse. Because of this, when Lu Chuan “magically changed” the novel “Ghost Blowing the Lamp” into the movie “Nine-Story Demon Tower”, he not only had to obtain the prior permission of Tianxia Ba Sing, but also paid attention to not infringing on the author’s signature when exercising the right of adaptation. Rights and Integrity of Works.[10]Obviously, unlicensed commercial streaming of games is not fair use.

  3. Is platform copyright management “whack-a-mole” or “wake up the ostrich”

Since its inception, the safe haven rule has been the focus of Internet legal controversy. From UGC online video platform, to search engine MP3, to aggregate hotlink infringement. Under the safe harbor rule, the derived red flag principle disputes, server and user perception and labeling disputes, cloud disk transfer problems, browser aggregation transcoding problems, and temporary storage problems, etc., are accompanied by online video, music, literature, news, Live broadcast, short video, cloud and other sub-industries have always developed. After three revisions to the Copyright Law, more than ten years of Jianwang actions, typical judicial judgments at different stages, and the transformation of Internet platforms to legalization, in the context of the increasingly mature artificial intelligence and blockchain technologies, has the “safe haven” rule reached the critical point of adjustment? point? The “safe haven rule” is an institutional arrangement under a specific historical background. More than 20 years after its establishment, it has become “powerless” in adjusting the issue of online copyright infringement, which is easy to generate and encourage the “ostrich mentality” of online platforms. Objectively speaking, we cannot solve the new problems of the 21st century with the methods of the 20th century. It is time to consider using “new technologies” to combat “piracy gophers”.

On April 15, 2019, the Council of the European Union adopted the Single Digital Market Copyright Directive. The new directive imposes special responsibilities on online content-sharing platforms, including possible copyright filtering measures. According to the requirements of Article 17 of the new directive, online content sharing service providers should endeavour to cooperate with copyright owners to obtain authorization. Once the content uploaded by the user infringes the copyright, the sharing platform will be held responsible for the behavior that it implements to provide the public, rather than only assume the obligation to remove the infringing content afterwards. Unless it has made every effort to obtain authorization; and in accordance with the high standards of care in the relevant industry, has made every effort to ensure that “works and other content for which the right holder has provided relevant necessary information” is not available to the public on its platform; take prompt action to cut off the link or remove the infringing content from the site after sufficient and substantive notice has been given.[11]

In connection with this, the United States has begun to modernize the DMCA,[12]Concerned about “duty of care neglected”, “difficulty in applying red flag rules”, and “notice to delete condoning pirated gophers” and other issues, and discussed CDA230 clauses related to DMCA.[13]In the “Thirteenth Five-Year Plan for Copyright Work” issued by the National Copyright Administration of China in 2017, it was proposed to initially build a strong copyright country with Chinese characteristics in 2020, basically realize the modernization of the copyright governance system and governance capacity, and promote the national copyright supervision platform project. and other key projects. In addition, the domestic debate on the tort liability of new network service providers such as cloud services and small programs is also worthy of attention. The Beijing Intellectual Property Court revoked the first-instance judgment in the second instance of the Alibaba Cloud case, and clearly determined that the “notice to delete” rule does not apply to new network service providers such as cloud services.[14]In the WeChat Mini Program case, the Hangzhou Internet Court of the first instance and the Hangzhou Intermediate Court of the second instance made similar determinations.[15]For the first time in China, the two cases systematically clarified the dispute over the scope of application of the “notice deletion” rule, and directly faced the issue of regulation and coordination between the “Information Network Communication Right” and the Tort Liability Law, and clearly proposed that “transfer of notice” alone could become an “independent necessity”. The judgment of “measures” and the logic of the application of the “principle of proportionality” in online copyright infringement are very rare.

  4. Is the live broadcast of the event a “faithful record of the event” or “creative production and broadcasting”

“Copyright Law” welcomes amendments to focus on 4 new types of copyright issues

Since 2015, Tencent, Alibaba, Suning, and CCTV have successively entered the sports production and broadcasting market, and the issue of live event protection has begun to emerge. Sports events live broadcasts are based on sports events, and live broadcast of sports events with the help of live video recording technology. Through directing, commentary, long-range lens switching, close-up, etc., the event is creatively interpreted in an all-round way, and finally consists of a variety of continuous images. Form wonderful audiovisual content with sound effects. In “Webcasting”, Internet companies are not simply communicators. Tencent, Suning, etc. all have professional event live broadcast teams, equipment and venues. After receiving the signal carrying the copyrighted content, they will re-produce the event content, including editing and inserting, matching pictures and tables, commentary and data analysis, etc.

In the 1/8 final of the 2006 World Cup, England faced Ecuador. At the 60th minute of the match, the two sides still scored a goalless draw. England won a free kick in the frontcourt. The live production team and the vast number of fans recorded the wonderful footage of the lore through the screen, which is still fresh in my memory. If not for a certain originality and superb recording level, this picture would never have such an impact. When Internet companies entered the sports industry with new technologies and new models and participated in the production of event programs, there were huge disputes over issues such as the copyrightability of live event programs and the division of live broadcast rights. Repeated piracy has diverted a large number of viewers from authorized websites, and the vision of monetizing the traffic of rights people is in crisis.According to statistics, in 2017, the Chinese Super League was infringed on 240 games, and the infringement ratio was 100%. A total of 57 infringing live broadcast platforms and 1,248 live broadcast infringement links were found.[16]. The reasons behind it should be pondered.

my country’s “Copyright Law” is divided into “works” and “products”, some claim to distinguish between originality, and some claim to distinguish between originality. In the second instance of Sina v. Phoenix, the judge held that the dichotomy of film works and video products means that the former is more original and the latter is less.[17]However, in judicial practice, we cannot deny the fact that “video products” such as MTV have a certain originality, but it is difficult to objectively judge the originality of the content. In any event, the notion of “original” itself is too abstract, and Holmes argues that it is dangerous to have judges who are merely legally trained to judge the value of a work. In addition, my country’s “Copyright Law” has a total of 17 authors’ rights, and the communication right includes the broadcasting right and the information network communication right.[18]However, “webcasting” is precisely the form of non-interactive out-of-network communication in wired form, which is in the cross-vacuum area of ​​the regulation of broadcasting rights and information network communication rights. In fact, in international treaties, the legal regulation dilemma of live broadcasting has been resolved by Article 8 of the WCT,[19]It is expected that my country will lead all communication behaviors with the “big communication power”.

  V. Prospect: “Technology Breaks the Wall”, looking forward to the dynamic adjustment of copyright law

On April 28, the Beijing Treaty on Audiovisual Performances came into effect, which is the first international intellectual property treaty concluded in my country and named after a Chinese city since the founding of the People’s Republic of my country. The conclusion and entry into force of the “Beijing Treaty” will comprehensively improve the international community’s level of protection of performers’ rights, and is a further supplement to the “Rome Convention”, “Performances and Phonograms Treaty” and other international conventions.[20]Since 2012, China has cooperated closely with the World Intellectual Property Organization to promote more and more countries to ratify and accede to the “Beijing Treaty”, which reflects the determination and ability of the Chinese government to strengthen intellectual property protection. In this context, we need to have a new perspective when looking at new copyright issues on the Internet. The above problems stem from technological breakthroughs, and involve the measurement of a country’s copyright economy and Internet development level, the adjustment of copyright policies, and the coordination of various stakeholders.

Figure: Dreamwriter live writing Display

When the content created by Microsoft Xiaobing is no different from the works of natural persons, and Tencent Dreamwriter’s signature news is widely accepted, should we still exclude the content created by artificial intelligence from copyright protection? At present, the United Kingdom, New Zealand and other countries have included the content created by artificial intelligence into the protection scope of copyright law, Japan and other countries and regions have also begun to formulate new rules, and the United States and WIPO (World Intellectual Property Organization) have begun to target artificial intelligence-related copyrights. conduct research with other intellectual property issues,[21]The AIPPI (International Association for the Protection of Intellectual Property) London Conference also issued a resolution on “Copyright Issues in Artificial Intelligence”,[22]They all believe that artificial intelligence generation should be given legal protection in different ways and to different degrees. my country’s copyright legislation, judicial practice and theoretical research have sufficient “system confidence”, and it is necessary to respond to the copyright protection of artificial intelligence creations in the future.

As for the question of whether game commercial hosts are fair use, we should note that conversion review is important, but strong conversion is not a sufficient condition to prevent infringement, and conversion use is not equivalent to fair use.[23]The most important purpose of the fair use system is to correct market failures, and its judgment cannot be separated from the analysis of the market structure in essence.[24]When we judge whether the game live broadcast behavior of commercial anchors is reasonable use, we need to consider the high originality of the game works, the quantity and quality of the game content used by the anchor, and the potential market impact on the game rights holders (the game live broadcast and short video market are Judgment by multiple factors such as the potential market of the right holder. In addition, according to Professor Liu Jiarui’s research, conversion use varies widely in terms of motivation and form of use. In the judicial practice of copyright in the United States, it shows a strong labeling trend and gradually loses predictability.[25]In December 2019, at the Cross-Strait Copyright Legal Development Seminar, Director Sun Haochen of the Law and Technology Research Center of the University of Hong Kong suggested abandoning the application of “conversionary use”.[26]

Regarding platform copyright governance, the new copyright directive passed by the European Union will have a significant impact on global Internet governance and legislation. Whether my country should learn from the provisions of Article 17 of the EU Copyright Directive and set copyright filtering obligations and authorization seeking obligations for platforms requires careful study and practice, and we should examine the specific background and purpose of its legal revision. The theme of this year’s “Jianwang Action” is “Strengthening Copyright Governance and Optimizing Copyright Ecology”. At present, we should encourage content sharing platforms to actively carry out platform copyright management based on the concept of practice first.[27]In addition, we need to scientifically define the boundaries of responsibility for new Internet services such as cloud and mini programs. In the “Civil Code (Draft)” released on December 16, 2019, the National People’s Congress stipulated in Article 1195 of the law, “Network services to take necessary measures based on prima facie evidence of infringement and the rights and types of services”,[28]This open requirements for necessary measures will facilitate the promotion of “transfer notification” as an independent type of necessary measures.

In November 2019, the General Office of the CPC Central Committee and the General Office of the State Council issued the “Opinions on Strengthening Intellectual Property Protection”, which specifically clarified that “research and strengthen the protection of intellectual property rights in the broadcasting of sports events”. The protection of live broadcast images of events also involves the protection of e-sports events. The difference between the latter and the former is that the traditional live broadcast of events requires the permission of the event organizer, which is the creative filming and dissemination of sports activities such as long-distance running, high jump, and football. screen. Game works and game sequences themselves are objects protected by copyright law, while traditional competitions are not. Therefore, the copyright law attribute of the live broadcast of the e-sports event is stronger, and the rights structure is more complicated. my country’s “Copyright Law” is being revised for the third time, and the industry expects that “audio-visual programs with the same expression and originality” will be included in the category of “audio-visual works” for protection, and video recordings will be deleted to avoid subjective originality. At the same time, the concept of “communication right” was created to cover “broadcasting right” and “information network communication right”, so that the communication behavior of related works can be better protected.

  References

  [1]Zhu Bing: “Review of Participation in the Legislation of Copyright Law (Part 1) (Part 2)”, in “China Copyright”, No. 4, 2019.

  [2] The market size of China’s online copyright industry in 2019 will be announced by the Network Copyright Industry Research Base of the National Copyright Administration on another day.

  [3]National Copyright Administration: “Notice for Public Comments on the Copyright Law of the People’s Republic of China (Draft Amendment)”, March 31, 2012.

  [4]See https://www.wired.com/2012/04/can-an-algorithm-write-a-better-news-story-than-a-human-reporter/, last accessed November 31, 2019.

  [5]Wang Qian: “On the Qualitative Nature of Artificial Intelligence Generated Content in Copyright Law”, Legal Science, 2017, No. 5, pp. 148-155.

  [6]Yi Jiming: “Are Artificial Intelligence Creations Works? , in Legal Science, 2017, No. 5, pp. 137-147.

  [7] See Nintendo Game Content Guidelines for Online Video & Image Sharing Platforms, https://www.nintendo.co.jp/networkservice_guideline/en/index.html, accessed April 25, 2020.

  [8]See https://communitytournaments.blz.cn/zh-cn/, last accessed November 31, 2019.

  [9]See Shanghai Pudong New District Court Civil Judgment (2015) Pu Min San (Zhi) Chu Zi No. 191, Shanghai Intellectual Property Court (2015) Hu Zhi Min Zhong Zi No. 641; Guangzhou Intellectual Property Court Civil Judgment (2015) Yuezhi Fa Min Chu Zi No. 16, Civil Judgment of Guangdong Higher People’s Court (2018) Yue Min Zhong No. 137, etc.

  [10]See Beijing Intellectual Property Court Civil Judgment (2016) Jing 73 Min Zhong No. 587.

  [11]See Tian Xiaojun and Guo Yudi: “Research on Copyright Governance of Short Video Platforms – From the Perspective of Setting Copyright Filtering Obligations”, “Publishing and Distribution Research”, March 2019[12]https://www.judiciary.senate.gov/meetings/the-digital-millennium-copyright-act-at-22-what-is-it-why-it-was-enacted-and-where-are-we- now, accessed 29 March 2020

  [13]https://techcrunch.com/2019/04/12/nancy-pelosi-section-230/amp/, accessed March 29, 2020.

  [14]See Beijing Shijingshan People’s Court Civil Judgment (2015) Shi Min (Zhi) Chu Zi No. 8279, Beijing Intellectual Property Court Civil Judgment (2017) Jing 73 Min Zhong Zi No. 1194.

  [15]See the Civil Judgment of Hangzhou Internet Court (2018) Zhe 0192 Min Chu No. 7184, and the Civil Judgment of Hangzhou Intermediate People’s Court of Zhejiang Province (2019) Zhe 01 Min Chu Zhong No. 4269.

  [16]See Guanyong Technology: “2017 Chinese Super League Monitoring Report”, http://sports.163.com/18/0315/11/DCUFEQ6200058780_mobile.html, accessed on June 21, 2019.

  [17]See Beijing Intellectual Property Court Civil Judgment (2015) Jing Zhi Min Zhong Zi No. 1818.

  [18]The biggest problem with “broadcasting right” is that direct cable transmission is not regulated, while “information network communication right” is considered not to cover non-interactive network communication.

  [19]See WIPO Copyright Treaty, https://wipolex.wipo.int/en/text/295166, accessed June 21, 2019.

  [20]Lai Mingfang: “The Beijing Treaty on Audiovisual Performances will take effect on April 28”, China Press, Publication, Radio and Television, April 24, 2020.

  [21]See WIPO Begins Public Consultation Process on Artificial Intelligence and Intellectual Property Policy, https://www.wipo.int/pressroom/en/articles/2019/article_0017.html

  [22]See http://www.aippi.nl/nl/documents/Resolution_Copyright_in_artificially_generated_works_English.pdf

  [23]The concept of “transformative use” originates from the first element of the “four elements” of fair use in US law, that is, the purpose and nature of the use. In addition, the nature of the copyrighted work, the quality and quantity of the copyrighted work used, and the impact on the market and value of the copyrighted work should be combined to comprehensively and systematically determine whether a specific use constitutes fair use. In a case, the establishment of “transformative use” does not directly presume the establishment of fair use. It is also necessary to comprehensively consider whether the use is for commercial purposes, the originality of the copyrighted works being used, and the quantity and quality of the copyrighted works being used. Moderation and necessity, and whether there is a negative impact on the market for the copyrighted work being used. See Jiao Heping: “Research on the Fair Use of Copyright in Online Game Live Streaming”, in Legal Science, No. 5, 2019, pp. 71-81.

  [24] Wendy Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 Columbia Law Review 1600 (1982)

  [25] See Jiarui Liu, An Empirical Study of Transformative Use in Copyright Law, 22 Stanford Technology Law Review 163, at 163 (2019).

  [26]See Sun Haochen: “The Enlightenment of Mainland Reasonable Use Cases for Establishing the Principle of Public Interest”, “Seminar on the Development of Copyright Legal System Across the Taiwan Straits and Hong Kong and Macau (Shenzhen)”, December 11, 2019.

  [27]National Copyright Administration: “Notice on Doing a Good Job in Copyright Publicity Activities of National Intellectual Property Publicity Week in 2020”.

  [28]Article 1195 of the “Draft Infringement of the Civil Code”: If a network user uses network services to commit infringement, the right holder has the right to notify the network service provider to take necessary measures such as deletion, blocking, and disconnection. The notice shall include prima facie evidence that constitutes infringement and the real identity information of the right holder. After receiving the notice, the network service provider shall promptly forward the notice to the relevant network user, and take necessary measures according to the preliminary evidence of infringement and the type of service. responsibility. If the fault notification causes damage to the network user or network service provider, it shall bear tort liability.

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