| The development of science and technology often has a profound impact on human society and challenges existing legal norms.In the age of information explosion,search-based news aggregation platform,a new type of network operation model,has emerged to help people quickly obtain news information that meets their needs.The search type of news aggregator platform provides a news aggregation service,which can capture and aggregate information such as news works existing in cyberspace and push it according to user preferences.This convenient and quick way of providing information saves people the time cost of information selection and is widely welcomed by users.However,the news work published by the search type of news aggregator platform is not an original work,which has triggered the controversy over news aggregation search behavior infringing copyright.According to relevant laws and regulations of our country,current news not protected by copyright law only refers to “single factual information”,and news works that reflect the creator's originality are not listed,but the information be captured by search type of news aggregator platform contains a large number of news works protected by copyright law.The aggregation of news search is mainly realized through transcoding and deep link.The nature of transcoding and deep link determines whether the behavior of news aggregation search infringes copyright.Transcoding involves temporary copying and permanent copying.The content of the temporary copy will be automatically deleted as the user's browsing process ends.According to the theory of reproduction rights and drawing lessons of the legislation experience of the US and Europe,temporary copying of elements that do not meet the requirements for stable and lasting fixation on tangible material carriers is not considered.Infringement of the right to copy;however,the act of storing the transcoded content on the server will result in a permanent copy,which is a copying act.As for deep link,the focus of the controversy is whether it belongs to the provision of works in the dissemination of information networks.Our country's laws have very ambiguous regulations on deep link.They only make general rules for links,and ignore the essential differences between deep link and ordinary links,resulting in different court decisions.As to whether or not deep link constitutes the issue of works,the “substance appearance standard” advocates that deep link produce substantial substitutions for the original work and belong to the offering of the work.In addition,search type of news aggregator platform do not meet the applicable conditions of copyright restrictions and exceptions such as fair use.Therefore,unauthorized news aggregation search behavior constitutes a violation of copyright.As for the problem of determination of liability,based on the theory of copyright law and combining the characteristics of infringement in search type of news aggregator platform,a system of the combination of fault liability and no-fault liability should be established.It's a basis to clarify the way of bearing responsibility.Specifically,as long as the news search aggregation is carried out without permission,it shall bear the responsibility of stopping the infringement,and it is not necessary for the perpetrator to be at fault;and the liability for the compensation for damages shall be based on the premise that the infringer has an error,and the fault liability shall be applied.The copyright infringement caused by the search type of news aggregator platform can be resolved from the legal aspect and the industry specifications aspect.At the legal aspect,it's necessary to improve relevant laws and regulations,make provisions for transcoding and temporary copying,and distinguish links from ordinary links and deep link in law to clarify their copyright attributes.Secondly,the protection of rights holders can be strengthened through the technical measures stipulated in the Copyright Law.In view of the contradiction between the rapid development of science and technology and the stability of the law,the role of the Guiding Case of the Supreme Court should be brought into full play in order to timely solve the new problems emerging in the development of search type of news aggregator platform.At the industry specifications aspect,guidance should be strengthened to increase the copyright awareness of search type of news aggregator platform.At the same time,industrial cooperation should be strengthened to rationally distribute the economic benefits brought by copyright,promote the sound development of the industry,encourage the advancement of Internet technology,and achieve an all-win situation for related parties such as the aggregation platform and copyright owners. |
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