| With constant development of communication technologies,the dependence of information flow on tangible carrier has become increasingly lower,and the influence of duplication has been more and more weakened as well.Especially after the maturation of network technology,the use of works has shifted from control of copies to direct acquisition of them through information network,and controlling the communication works has become the major means for copyright holders to realize economic benefits.According to the basic rationale of indirect infringement,where a certain behavior is only to assist communication,if the assisted object falls into unlicensed infringed communication,the behavior of assistance will possibly constitute indirect infringement;but if the assisted object falls into legal communication behavior,then the assistance does not need to obtain the licence from the copyright holder and ultimately will not possibly constitute copyright infringement.If a certain behavior is communication behavior,then the licence from the copyright holder has to be obtained;or otherwise,it will constitute direct infringement against copyright.Hence,clearly defining the communication behaviors in copyright law serves not only as the foundation for judging communication from assistance in communication in copyright law,but also the key for solving communication related infringement disputes.Meanwhile,it also determines thecontent of the right in copyright as well as the development and fate of related business modes.However,against the backdrop of numerous and complicated facades of internet communication,issues like identification of information network communication and demarcation line between direct communication and assistance in communication have triggered a series of heated debates in theoretical research and judicial practice.The underlying cause for the disputes is due to lack of systemic and in-depth studies of the fundamental theoretical issues like the concept and constitution standard of communication behaviors in copyright law,and no clear understanding formed regarding relevant issues as well.To solve relevant disputes concerning the identification of information network communication behaviors,we have to take the communication behaviors in copyright law as research subject to give it a clear definition,and guide the judgment upon certain issues with the common fundamental features and concepts of the behaviors.In this way,scientific answers will be provided for identification of information network communication behaviors,and correspondingly relevant suggestions will be put forward for the solution of "deep link" related issues.This dissertation is divided into four chapters,which will fully discuss the significance of studying the communication behaviors in copyright law,behavior identification standard to be adopted,issues like category,concept and constitution standard of communication behaviors in copyright law,as well as in-depth analysis of relevant issues like "deep link" with the help of certain research results.Chapter One presents the "Status of Communication Behavior in Copyright Law".This chapter mainly expounds on the key and important role of "behavior" in intellectual property right law system,illustrates and demonstrates the significance and importance of studying and accurately identifying communication behavior."Behavior",playing a key role in intellectual property right law system,serves as the fundamental foundation for defining the content of intellectual property right and judging intellectual property infringement.Besides,an accurate definition of behavior also works as the foundation for reasonable arrangement of intellectual property right claims to realize the benefit balancing mechanism.Under the background of rapiddevelopment of communication technology,the control of communication behavior has become the major means for copyright holders to realize economic benefits,and copyright law has shifted from being centered on "duplication" to "communication",so communication behavior should become the focus of theoretical research on copyright law.The first important problem to be solved in the research on communication behaviors in copyright law is to accurately define what is communication behavior,which is fundamental yet unsolved issue.Accurately defining the communication behaviors in copyright law is not only the foundation for media industry to develop new businesses and new commercial modes,but also the precondition to select reasonable protection means to safeguard self-interest and make sure competitive advantages,therefore playing a guiding role in the business innovation and development of media industry.Chapter Two introduces the "Manifestation of Communication Behaviors in Copyright Law".This chapter studies the scope of communication right and communication behaviors in corresponding copyright laws and reviews the regulations involving communication behaviors in the instance of legislation of copyright law.Defining the scope of communication behaviors in copyright law must be based on the claims of communication right.In copyright theory,property right in works can be divided into right of duplication,right of distribution and lease,right of interpretation and communication.Duplication and interpretation behavior does not cause any information flow or sharing,so the right of duplication and interpretation should not be included into the category of right of communication.The behavior of distribution right and lease right control both depends upon tangible carrier for realization of information flow;besides,combined with their applicability to the rule of right exhaustion,all these features determine that the right of communication should not include the right of distribution and lease.According to the stipulations in Chinese current copyright law,the rights falling into communication include the right of performance,the right of showing,the right of exhibition,the right of broadcasting,and the right of information network communication,so communication behaviors in copyright law shall include performance,showing,exhibition,broadcasting andinformation network dissemination as well as other behaviors for information transfer in a sharing manner.Historically speaking,the development of communication behaviors in copyright law can be divided into three stages,namely primary stage of communication(site performance and exhibition),advanced stage of communication(mechanical performance and showing),and high stage of communication(broadcasting and information network dissemination).The communication in copyright law is the reflection of specific communication behaviors from actual livelihood,so defining the communication in copyright law cannot surpass the communication behaviors in reality.With development of communication behaviors in copyright law,the type of communication participants have seen constantly increase,and legal relations related to communication has become more and more complex,which significantly increases the complexity of communication behaviors and ultimately brings a series of challenges to theoretical research.However,the fundamental commonality of communication in copyright law lies in sharing information with others without transferring the tangible carrier of works.It can be obtained with a look at the current copyright legislation worldwide that open communication right is normally displayed in current legislation through the presence of several scattered claims,and the corresponding specific communication behaviors are only mentioned or roughly illustrated.Therefore,no matter from copyright related international conventions or the legal stipulations of major countries or regions,a comprehensive and accurate definition of communication behavior in copyright law cannot be obtained.Chapter Three discusses the "Definition of Communication Behaviors in Copyright Law".This chapter reviews the stipulations involving communication behaviors in copyright legislation,and conducts semantic explanation of the term "communication",analyzes the subject and physical rationale of communication behaviors.In addition,it also examines how the concept of "communication" in propagation sciences has evolved from the a concept in physics,analyzes and summarizes the common features of communication behaviors in copyright law.Furthermore,communication behaviors in copyright law are theoretically classified,and finally the complete concept of communication behaviors in copyright law summarized."Communication" means transfer or transmission of information to let others know,so it can be understood as sharing.From the angle of etymological explanation,the basic connotation of "communication" includes people-to-people interaction and information sharing through transfer.Works are one kind of information that falls into the category of objective existence.Information cannot flow by itself to be perceived by human beings,but instead it must rely on material carrier for transfer to be shared with others,and there is no the existence of information transfer of purely spiritual activities.Information carrier can be divided into storage carrier and communication carrier.The former is tangible while the latter is intangible.Communication carrier is a certain material without concrete shape to carry the works for transfer and a certain form of information,including sonic wave,electric current and electromagnetic wave.The information of works,carried and transferred by communication carriers,is the direct subject of communication behaviors in copyright law.It can be known after an in-depth examination into and careful dissection of terms like "vehicle","medium","signal" and "communication carrier" that it is more suitable to refer to the subject of communication behaviors in copyright law using the term of "communication carrier".Information transmission is one kind of artificially triggered physical phenomenon,and its basic rationale lies in utilizing the change characteristics and carried information of physical variables like mechanical wave,electric current or electromagnetic wave,and representing the information through movement deviation of the variables.The movement traces of mechanical wave,electric current and electromagnetic wave are the traces of information communication,and the sender of mechanical wave,electromagnetic wave and electric current carrying information is the actual doer of communication behavior.The features of communication behaviors in copyright law include:non-occurrence of transfer of storage carrier;works plus communication carrier as the subject of communication behaviors;information transfer to non-specific majority;non-inquiry into whether the audience has actually obtained the information;and whether the audience actual obtain the information or not doesn't influence theformation of communication.The communication in propagation sciences is based on but different from the propagation in physics.Under the support of task and goal in communication sciences,the concept of communication has expanded to transfer of social information and operation of social information system.This method of extension and expansion of the communication concept based on the communication concept in physics and oriented at research subject and task is referable in defining the concept of communication behaviors in copyright law.Apart from being divided into communication in the public and communication to the public,interactive communication and non-interactive communication,the communication in copyright law can still be divided into self-determination communication and responsive communication.The former refers to communication that will happen without the request from audience;and broadcasting,exhibition,site performance,mechanical performance and showing completed by communicators all fall into this scope.Responsive communication refers to the communication upon request from audience or self-help operation,and self-help playing and information network communication all fall into the field.Self-determination communication takes actual sending communication carrier as constitution standard while responsive communication takes the state of being on standby for audience to send communication carrier request.The concept of communication behaviors in copyright law can be defined as: for self-determination communication,the communication behavior in copyright law refers to the instruction to combine work and communication behavior and to send the communication carriers with work information to the public.For responsive communication,the communication behavior in copyright law refers to instruction to put the work in the state of being able to be carried by communication carriers and on standby to be send to the public.In responsive communication,the concept of communication behaviors in copyright law is based on the communication concept in physics,with the goal of fully protecting the benefits of copyright holders.For the expansion into the concept of self-determination communication,it possesses not only the theoretical foundation and legitimacy of protecting authors' benefits,but also the support of precedent in legislation.Chapter Four is about the "Identification of Communication Behaviors and Qualitative Research on 'Deep Link'".This chapter analyzes and demonstrates the criteria for behavioral identification,and clarifies the constituent standards of communication behavior with reference to the concept of communication behavior in the copyright law.In addition,taking the most controversial issue of "deep link" as research subject and starting from analyzing the rationale of "deep link",it dissects the features and essence of setting "deep link" behaviors,introduces and analyzes relevant viewpoints on the legal definition of "deep link" within the academia(i.e.,the standard of identifying information network communication behaviors),analyzes the legal nature of "deep link" behaviors on strength of the results of this research regarding the concept and constitution standard of communication behaviors in copyright law.Ultimately,it proposes comments and suggestions to the stipulation issue of "deep link".This chapter serves as the application and verification of the previous research results.The identification of a behavior in the legal system is first and foremost a legal issue,which ultimately boils down to the question of fact,so defining a certain behavior in law is in essence an issue of facts,falling into judgment upon objective facts.In judgment of facts,there are subjective and objective standards,wherein the latter enjoys obvious advantages over the former,so the identification of facts should adopt the objective standard as the first option.According to the definition of communication behavior in the copyright law,the composition criteria of communication behavior in copyright law can be summarized.There is no essential difference between "deep link" and "regular link" in technical rationale,because on the link setting website server there is no object file obtained by storage users,which determines that the link setting website server can neither send communication carriers carrying information of works nor be on standby to send the communication carriers carrying information of works.Among the standards for identification of information network communication behaviors,user perception standard,essential presence standard,and actual control standard are essentially the same,i.e.,taking the subjective feeling of users as the standard for identifying information network communication behaviors.Essential substitution standard and new public standardshare the same logic,that is,taking the consequence or effect of behaviors as the standard for identifying information network communication behaviors.Legal standard is not an explicit one,so it cannot work for identification.Server standard serves as a scientific and reasonable standard for identifying information network communication behaviors,and it is consistent with the viewpoints and conclusions like the objective standard to be adopted in identification,the concept and constitution standard of communication behaviors in copyright law proposed in this research.In essence,"deep link" is still a link,but only taken as assistance behavior in information network communication."Deep link",when combined with circumvention means of technical measures,becomes "deep link" with the function of circumventing technical measures.According to different functions,technical measures can be displayed as"anti-contact" technical measures and "anti-open" technical measures.Works under"anti-contact" measures must already be in the state of open communication;or otherwise,there is no possibility or need of controlling the contact by others.For works in the state of open communication,setting "deep-link" with circumventing"ant-contact" technical measures does not shift the works from being in the state of not open to the public to being on standby to be sent to the public through communication carrier,for the linked works are already in the state of open communication.This type of "deep link" possessing " the function of circumventing"anti-contact" technical measures only circumvents the conditions set up for communicators to obtain the works.Works under "anti-open" technical measures must not be in the state of open communication;and setting "deep link" with circumventing"anti-open" technical measures for the works will put them into the state of being on standby to be sent to the public through communication carrier.The "deep link"behavior at this moment,due to possessing the function of circumventing "anti-open"technical measures,constitutes information network communication.For "deep link"behaviors that does not constitute assistance in infringement,the copyright is not entitled to control,so there is no issue of circumvention.Stipulations of "deep link"circumventing technical measures must start from cracking down on circumventing technical measures,including allowance for licensee with the right of informationnetwork communication under regular or special license to independently initiate legal proceedings against behaviors that circumvent his or her own technical measures.For the behaviors that circumvent "anti-open" technical measures,copyright holders can also affix direct infringement liability of information network communication right against the doer.When the link setter goes against industrial tradition or business norms by forcibly setting "deep link" to the works communicated by others,sanction shall be granted according to the Anti-unfair Competition Law. |
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