On The Identification Of Information Network Communication Behavior

As an emerging copyright industry,online copyright has only been in existence and developing for decades since its regulations' establishment.From the Berne C.onvention to the WIPO Copyright Treaty,and to the specific content of umbrella solutions in various countries,coupled with the gradually changing social reality and the background of the times,these legal regulations and changes in reality are constantly updating and impacting the original views.The defects of the original theories and systems are now exposed to us,and these defects are urgently needed to be solved.The "server test" and "user perception standard" formed in the early days were extremely reasonable at the time,but with the continuous changes of technical means and infringement modes,their rationality is still to be discussed and further improved nowadays.So how should the reasonable judgment standards be constructed?How should the problem of framed links and stealing links with distinctive representative in judicial practice be explained?Following the changes in the reality and judicial practice,what adjustments should be made in legislation?These questions deserve further consideration.For these questions,this thesis will analyze and respond in the following six sections.The first section introduces the conflict between the openness of network copyright and the exclusiveness of copyright protection.This is the special background of network copyright.Then the thesis analyzes the rational basis of the"server test" that have been used as a golden rule from the past even to the present,and the reasons why it should not be applied or should be retrofitted now.The reason why the "server test" should be reasonably adjusted is that the communication right of China's information network copied the right of "making available to the public" in"The Berne Convention" and "The WIPO Copyright Treaty".However,China's"Copyright Law" and "Regulations on the Protection of the Right of Information Network Dissemination" are imperfect in the regulation of the right of disseminating information from the Internet,so that this right cannot cover all infringements of Internet service providers.This leads us to face the dilemma of infringement but no accountability in practice.The second section of this thesis starts with other "theoretical standards" and analyzes the specific content of "user perception standard","substance substitution standard","substance legal standard","subsequent making available standard" and"new public standard" and their respective pros and cons.Through the analysis of each test,this thesis specifically identifies its reasonableness and irrationality,explores the theoretical support and realistic rational factors behind these standards,and provides reference for us to improve the identification of copyright infringement of network service providers.The third section is based on the integration of the above two sections.By analyzing the focus of various "standards"and the behavioral evolution of infringement,the thesis makes a substantive conclusion of the correct behavior-centered judgment mode and puts forward a viewpoint of providing the public with elements of binary composition.At the same time,we need to pay attention to the distinction among "initial making available","subsequent making available" and "secondary making available" to avoid a complete technicism analysis.The fourth section is the concrete analysis of the mainstream infringement modes in the real world after the establishment of the behavior-centered judgment mode as correct—framed links and stealing links.By analyzing the characteristics of framed links and stealing links,this thesis finds the reasons and conclusions of the copyright infringement of the holders,and reveals the difference between framed links and general links.Based on the code theory and the theory of his own content,framed links are analyzed from different dimensions.The main difference between the stealing links and the framed links is the circumvention of technical means.Therefore,this article clarifies the nature of the technical means and the judgment of the circumvention of the technical means,combined with the close relationship between the technical means and the copyright protection of the works.We can judge whether the stealing link infringes the copyright of others or not.The fifth section is the analysis of typical cases of aggregated infringement,for example,Sohu v.Bale Case and Tencent v.E-linkway Case.Analyze how behavioral analysis models should be used in specific cases.The sixth section is based on all the above sections.In order to cope with the shortcomings and loopholes in reality and theory,we must give suggestions for the legal regulation of copyright infringement of network service providers.Information network communication behavior is derived from the provisions of information network communication rights,so we must establish an overall historical basis for the right of making available to the public,accurately define the right of information network communication in line with historical origins,and the distinction between he right of information network communication and unfair competition.