Search Engine And Indirect Infringement

With the development of Internet, the number of users is increasing greatly while the amount of information is expanding fleetly. The facilitation brought by Internet rests with its particularity such as openness, compatibility, quickness and transnational communication. The search engine has created many conveniences for people. As relevant legislations lag behind the specialty of network technology however, there arises increased number of disputes surrounding the question whether hyperlinks violate copyright and related rights. The purpose of this paper is to assess the legal issues in following three aspects:Chapter 1 introduces search engine and direct infringement. For this part, the operational principle of information search tool technology is discussed as well as the possibility of direct infringement. This paper holds the opinion that, what search engine provides for is just hyperlink service, rather than reproduction or Internet communication to public. Consequently, search tool providers should not be imposed with direct liability.Chapter 2 surveys search engine and indirect infringement. This part demonstrates mostly general forms of indirect infringement i.e."contributory infringement"and its concepts, the core conditions to verify fault of actor,"safe harbor principle"and the liability imposed to ISP, and the application of"red flag standard". There follows an analysis on the drawbacks of relevant judicial interpretation and written reply issued by the Supreme People's Court. The paper presents the argument that hyperlink service provided by search engine dose not consist direct infringement but possibly indirectly violates the rights. As for determining fault in civil jurisdiction, we can not conclude the negligence only from objective behaviors, since the monitoring obligation on ISP is limited. It is seemed that the best means to solve and balance interest's conflicts between copyright holders and ISPs is to apply"safe harbor principle". Whereas the application of"safe harbor"should be subject to some restrictions, so the right way to examine"actual knowledge"and further indirect infringement is to use"red flag standard".Chapter 3 is the conclusion. This part contains the opinion that the balance between copyright protection and the development of information technology under the Internet environment should be pursued. If ISP were overloaded with liabilities, the obstacles on the promotion of science and technology would be created. However, the"safe harbor"should be dealt with appropriate attitudes, which refers to that the search engine providers bearing no monitoring obligation dose not mean he can escape indirect liability as well.