Studies On Secondary Infringement Of P2P

Enabling the Internet clients to share files person-to-person, the technology of P2P is proficiently changing the way of information transmission over Internet. Since the emergence of P2P, it has spread around the world with extensive applications. However, most of the applications are based on copyright infringement. From the technical structure of P2P, it can be inferred that there are mainly two kinds of infringers involved. One is the clients, while the other is the software and Internet service provider. The owner of copyright is conferred with exclusive rights to do certain acts, including reproducing the work in a material form, publishing it, communicate it to the public and so on.The clients, who without authorization use P2P to do these certain acts, should be responsible for primary copyright infringement. But, copyright owners face some difficulty to punish the clients, plus the clients can not compensate the great losses, so the copyright owners turn to the software and Internet service provider of P2P arguing that they are the secondary infringer for the primary infringement. The secondary liability depends on the role taken by the software and service provider of P2P in the operation of P2P. Although secondary infringement has a kind of inherent relationship with the doctrine of direct infringement, joint tort and vicarious liability in the case of employees or agents acting on behalf of principals, it is independent from them with its special features, so the software and service provider of P2P can only be liable for secondary infringement. Since copyright protection and technology development are both the aims pursued by copyright law, the development of technology should be taken into account when we evaluate the secondary liability caused by P2P.The Chinese copyright law has not introduced the doctrine of secondary liability, although it does have some relevant regulation. The doctrine of joint tort regulated in Chinese civil law can not be applied to deal with the problem of secondary liability caused by P2P. The"Busheng v. Feixingwang"case reflects the deficiency of Chinese copyright law in the field of secondary liability related to P2P. America and Australia have formed mature theory of secondary infringement, so they worth referring to when China tries to borrow the doctrine of secondary infringement related to P2P.After comparing the doctrine of secondary infringement in America and Australia, the author advises Australian doctrine of secondary infringement is suitable for China, because the doctrine in Australia provides adequate protection to copyright owner by handling the secondary liability caused by P2P steadily and completely with no restriction to the development of P2P.