The Copyright Issues Concerning Transcoding

Due to the widespread mobile devices,Internet surfing through mobile network has become a common phenomenon.It is even replacing the traditional network browsing because it is less influenced by the location and network conditions.Transcoding serves to provide channels for the transformation from the traditional website to mobile website,so as to enable users to visit the information stored in the form of traditional website with their mobile devices,regardless of the discrepancy of hardware.The providers of the original website,however,protest against transcoding on the grounds that transcoding would provide the works on their own sites instead of leading the users to the original website.Such conducts would constitute copyright infringement.Currently,transcoding is not under heated debate yet.The discussions concerning transcoding scatter among the discussions concerning news aggregators and web search engines.Consensus has not been formed on issues concerning the legal characters of transcoding,whether it constitutes copyright infringement,or whether the exemptions from copyright infringement would apply,and thus,judicial practice cannot resort to the secondary resources for reference.This article applies text analysis,comparative analysis and case analysis to discuss the legal characters of transcoding,and try to figure out whether copyright infringement would be constituted,and if so,whether exemptions would apply.Then,suggestions on how to regulate transcoding are provided in three aspects,i.e.,the legislative perspective,the judicial perspective,and the industry perspective.The body of this article is composed of five parts.The first part is about the introduction to transcoding.A technical perspective is adopted to summarize the concept and technical structure of transcoding,and several common transcoding methods are introduced.In addition,it discusses about the carrier of transcoding.which consists of internet platforms such as internet browsers,news aggregators and internet search engines.The second part of the article talks about the subject and the object of transcoding,establishing a foundation for the discussion about copyright infringement in the following parts.The subject of transcoding mainly includes the internet content providers and the internet service providers,the gap between which is gradually vanishing.This part also analyzes whether the object of transcoding would fall into the scope of copyright protection.The third part of the article is about whether transcoding constitutes copyright infringement.Firstly,it discusses whether the contents to be transcoded are protected by copyright law,the legal characters of transcoding,and the elements of copyright infringement.Then,relevant cases are summarized and analysis to provide a general idea about the judicial practice concerning transcoding.The part ends up with the conclusion that transcoding may constitute infringement.Then,the fourth part focuses on whether exemptions apply if there is copyright infringement.Generally speaking,transcoding does not fall into the scope of the three copyright exemptions-fair use,statutory license,implied license and the safe harbor rule.Only in specific strict conditions is the safe harbor rule likely to apply.Therefore,in the fifth part,this article considers how to promote the regulating mechanism for transcoding.The suggestions are eventually divided into three parts,from the legal aspect,the judicial aspect,to the industry itself.The arguments of this article are summarized as follows.Transcoding requires restoring the original webpage in the server of the transcoder and transmitting transcoded files to the users.Moreover,the original webpage might be revised.It is likely that such conducts would constitute copyright infringement.On the other side,the exemptions from copyright infringements could be based on the specific situations and characters of transcoding.