Indirect Copyright Infringement Liability Study

Under the rapid development of social economy and technology, more and more high-tech methods have been applied to the creation, use and transmission of works. The severity and extent of this indirect infringement of copyright is increasingly enhanced comparing to traditional environment of paper works. Currently, traditional copyright law finds it more difficult to regulating indirect copyright infringement. Practical concerns accelerate the pace for legal scholars to seek for more effective liability system regulating indirect copyright infringement. The Supreme Court's Interpretation on Law Application to Cases of Computer Internet Copyright Disputes, Regulations of Protection of Information Internet Transmission Right and Methods of Administrative Protection of Copyright under the Context of Internet have some points to this kind of infringement, but these regulations could not cover the drawbacks of current copyright law. Via the analyzing of Indirect copyright infringement,this paper discusses the necessity of setting up indirect copyright infringements liability system and the content of the system. This paper could be divided into four parts with approximate 40,000 words.Part 1 introduces indirect copyright infringements liability system generally. Compared to direct infringement liability, indirect infringement liability is described as civil liability originating form indirectly infringing personal right, property right and other legal rights and interests. Indirect copyright infringement is traditionally regarded as a type of joint torts. Decades of theoretical research and judicial practice in US, England, German and other developed countries help shape their own indirect copyright infringement liability systems. American copyright law gradually established the application of indirect infringement system to the Internet context through SONY case in 1984, Napster case in 2001 and Grokster case in 2005. Although different countries have their own systems, they have a basically same general principle that is to review the traditional infringement liability system in accordance to the objective reality. Theoretical research or judicial practice is still in the preliminary phase in terms of this.Part 2 discusses the value of indirect copyright infringements liability system. Indirect copyright infringement system comes out to meet the practical needs during the decades of human civilization development process, and it has become a key system to curb the internet infringements. This increasing value process indicates the unique importance of indirect copyright infringement system in the copyright system and is totally justified after the interpretation from sociology and economy. Today enormous high-tech methods like internet technology are applied into the use and transmission process of works and indirect copyright infringements mainstreams the infringements against the copyright owner. The feasor of indirect copyright infringement knows or shall know his service or products provides condition or convenience to other's infringement on copyright thereby sufficient condition has been offered for direct infringements and even lured other's direct infringements. Indirect tortfeasor is more obtaining plenty of illegal profits than infringing the copyright by direct tortfeasor making use of indirect infringements. Indirect tortfeasors are formulized, organized and capable of shouldering liabilities. Independently undertaking liabilities by indirect tortfeasor is not only reasonable but also quickly and efficiently remedying the copyright owner's losses. Indirect infringement system is a better solution to settling the copyright disputes under the high-tech environment.Part 3 discuss the particularity of indirect copyright infringements liability system. Comparing to traditional infringement liability system, indirect copyright infringement liability system has specificity in terms of liability structure and liability undertaking. Take a look at the relationship between direct acts and indirect acts, direct infringements attach to the indirect infringements. In perspective of the function of indirect infringements, indirect copyright infringements has a leading role in causing the damage and the function of direct infringements is absorbed in the subjective intents of indirect tortfeasors. The differences of indirect copyright infringements from assistance, instigation torts in traditional law of torts originate from the specificity in system structure of indirect copyright infringement system. Indirect copyright infringements not only play a main role in damages caused to the copyright owner but also provide possibility and necessity to direct infringements. Specificity in system structure leads to specificity in liability assumption. Distinct from the traditional joint and several torts system, firstly, indirect copyright infringements enjoys certain independence in liability assumption. Copyright owners shall ask the indirect copyright tortfeasor to shoulder the liability instead of pre-asking for the direct tortfeasor's liability. Secondly, indirect copyright tortfeasor shall assume the overall liability. Thirdly, similar to environment of dancing pool, the well-informed operator shall be imposed with substitute liability if he profits from infringements.Part 4 dicusses the structure of indirect copyright infringements liability system. This system should be aimed to circulate around internet environment, regulate works transmission by internet technology and efficiently remedy the right owner's losses. And this system should adopt fault liability imputation principle of high objection. The proving of indirect tortfeasor's subjective fault should adopt reverse burden of proof which means tortfeasor should prove no subjective fault. In addition, it is necessary to establish liability-free system of indirect copyright infringements liability system in order to further balancing interests between right owner and indirect tortfeasor. This liability system includes assistance in formation of direct tort by providing products or services to the public, if his products or services are aimed to the non-infringement uses and so on. Indirect copyright infringement liability system should put out specific regulations to the different indirect copyright infringements in order that direct tortfeasor, indirect tortfeasor and final user could reasonably assume their separate civil liabilities. In accordance with the indirect copyright infringement liability system, the right owner shall ask the indirect tortfeasor to undertake civil liabilities for the whole losses like infringement suspension, jeopardize expelling and loss compensation. Indirect tortfeasor could ask the direct torfeasor to contribute part losses after independent liability assumption. The right owner could ask the direct and indirect tortfeasors to undertake joint and several liabilities in the scale of losses. With respect to direct tortfeasor and final user, the principle of liability assumption of direct tortfeasor is no different from average tortfeasor. The liability of the final user generally should be taken according to related regulations of copyright law.