Study On Tort Liability Of The Search Engine Service Provider In Breach Of A Copyright

Internet search engines, along with the development of information technology are the emergence of new things. Imputing what principles applied to internet search engine service providers and how to identify relevant actors, directly relates to the rise of the new industry of search engine and intellectual property rights protection system, relates to the coordination between the promoting knowledge creation and knowledge dissemination, either. In China, because about internet search engine services should be under what circumstances the act, the laws does not provide clear rules infringement, and there is not enough theoretical concern, too. Therefore, intellectual property rights have to face the reality that the Courts can not offer out a convincible judge about the case that suing internet search engine service providers to be in breach of their intellectual property rights. However, internet has become an important part of people's lives as a backdrop, and studying the tort liability of internet search engine service providers has a strong practical significance. After consulting the relevant legal experience in China on the basis of the relevant existing legal system to sort out, this paper builds and perfects the system of tort liability of China's internet search engine service providers, hope to contribute to the development of the tort liability system in its modest way. This paper is divided into three parts: Part 1, The definition of the act of internet search engines service providers in breach of copyright and related technical concept; Part 2 The legal status of Internet search engine service providers and the types of specific violations; Part 3 the principle and finding faulty in the cases of suing the Internet search engine service provider.Partâ… 1 first illustrates the development of internet and internet search engine services, and then summes up the value of internet search engine services and the background to show that internet search engine has the following features: First, Searching automatically; Secondly, it provides links to customers in the form of links to provide complete information. These are two important characteristics of the search engine. They must be taken into account to study tort liability and general violations, their acts, their way of finding fault has their own characteristics. In conclusion on the basis of characteristics, we analyze two well-known cases against two search engine service providers, i.e. "Warner Record Company, Inc. and the other six companies vs. Baidu.com Inc." and the "Shanghai Busheng Music and Culture Transmission Ltd. vs. Baidu.com.Inc."Based on the analysis of these two specific cases, we brings out this question that whether the behaviors of Search engine service providers provide links and the temporary copying on works are in breach of the right related to the right holders.Partâ…¡, this part based on the issues raised in the first part, we analyze the specific conducts of internet search engine service providers. First, from the point of view of the protection of intellectual property rights and study the concept of the reproduction of the concept and significance, the features of the replication under the background of network environment, the features of the replication of internet search engine. And by studying "Berne Convention" and the relevant international practice, we think that search engine service providers should be made during the course of search services reproduction of the website distinguished from others; At one hand, if only for providing search service by a normal reproducing others search service website or proprietary rights of people, but did not resolve to take technical measures the same time and does not allow users to copy for reproduction again, then at this point the temporary copying should be considered to be a reasonable use copyright infringement and should not be considered to be enjoyed by the copies of the work; At the other hand, if the service provider while the same search engine website is a reproduction of others, also in the same server or workstation hard disk cache or a copy of the form. However, users can copy again, so then this behavior based on the consequences of such acts harm to copyright considerations. Such acts should be considered to be beyond the area of a reasonable use and should be considered as a violation of the copyright holder's reproduction rights. Second, the act to provide links in the current tort liability is to be considered to be in accord with the fault principle. When the link access to the infringing works at the time, not only take the view of the damage of the facts, act with the inspection results of a causal relationship between damage and the perpetrator is more important. I.e. to investigate whether there is any subjective mistakes, Chain subjective judgment based on whether or not a mistake. Links were set to judge whether there is subjective knowledge of the links pointing to the works of copyright infringement works. Whether we have been aware of copyright infringement under cautious obligations or not? To adopt a more subjective standard is proper, we think. I.e. to provide links to take responsibility for fault principle is appropriate. However, the judgment on fault should be more objective judgment, that is, to enhance its operational characteristics. Finally, identify the legal status of internet search engine service providers. In accordance with the internationally accepted practice, ICP and ISP are different as two different classification criteria. Base on analyzing the features of the ICP and ISP and the features of the characteristics of internet search engine service providers'behaviors, we think that internet search engine service providers should be classified to be an ISP.Partâ…¢we explored the principle and way of finding fault on internet search engine service providers. First, under the premise of internet search engine service providers will be identified as an ISP, from the general principles of civil law system, the point of international practice point, we think that the principle of fault should be applied to internet search engine service providers. Second, this paper explores to find the fault of internet search engine service providers. Based on the analysis of transplanting the "safe harbor" rules, "warning + removal" rules, sorting out the current status of the search engine service providers on the basis of tort liability system, we think that: firstly, Search engine service providers do not have to be responsible for temporarily copy, unless copies of the works are retained for a longer period of time; Second, search engine providers should be responsible for providing links, but they should be exempt when they have no fault. And they should bear the responsibility for providing the source of the works if technically possible. Thirdly, for providing links in the name of themselves, copyright search engine providers should bear the proper responsibility.In short, the tort liabilities of the internet search engine service providers appear with the development of science and technology and social issues, reflecting the tension between social development and the legal system. How to design the tort liabilities of search engine service providers will have far-reaching effects on the development of the industry of search engine service as well as intellectual property law, and consequently, actively establishing a legal system with Chinese characteristics which can balance the protection of intellectual property rights and the development of search engine is the challenge we must face!...