Research On Tort Liability Of On Demand Act In On Demand Cinema

With the development of Internet technology,people's diversified demand for cultural and entertainment contents and forms,and the industry's emphasis on the long tail effect of movies,VOD cinema,a new mode of screening,has been born and developed rapidly,which brings new vitality to the film screening market.In such a development environment,the problem of copyright infringement of the magnificent ambassadors of the scale and number of on-demand cinemas has become increasingly apparent.Most on-demand cinemas do not have the legal authorization of copyright owners to conduct on-demand films.What kind of dissemination right the film copyright owner has been infringed by the on-demand behavior of the on-demand cinema using the information network technology to disseminate the film works to the public is an urgent problem to be solved at present.The VOD cinema in this paper refers to a new type of cinema that uses information network technology to broadcast film works without the legal authorization of the copyright owner of the film works.The on-demand behavior of on-demand cinema is essentially the dissemination of film works by operators of on-demand cinema.According to the different infringement ways implemented by operators of on-demand cinema,the on-demand behavior of on-demand cinema can be divided into three types: the on-demand behavior of self-built local area network,the on-demand behavior of OTT box and the on-demand behavior of providing online search browsing and projection devices.This paper holds that the on-demand behavior of self-built local area network is interactive and infringes the copyright holder's right of information network dissemination;the on-demand behavior of OTT boxes are essentially the same as the on-demand behavior of providing online search browsing and projection devices.Although the behavior of disseminating film works involves the participation of information network dissemination technology,it is the film model chosen by consumers.Referring to the provisions of the Berne Convention on the right of projection,these two kinds of acts can be regulated by the right of projection,but the control of the right of projection in the current Copyright Law of China does not include the wired transmission of film works,which has become the main obstacle to identify the violation of the right of projection by these two kinds of acts.Under the background that information network is widely used in communication,digital film works are more vulnerable to illegal infringement and duplication.The concealment of illegal on demand makes it difficult for the right holder to obtain evidence in investigating the infringement liability of the infringer.Therefore,the application of the principle of presumption of fault to the imputation principle of the infringement liability of on demand cinema on demand reduces the burden of proof of the copyright holder of film works.Therefore,the application of the principle of presumption of fault not only reduces the burden of proof of the copyright owner of the film works,but also does not correct the operator of the on-demand cinema.Therefore,when analyzing the tort liability of the operator of the on-demand cinema,the application of the principle of presumption of fault is more conducive to protecting the copyright of the copyright owner in the era of information network.In error analysis,we should distinguish "intentional" from "malicious".For some operators with strong subjective malignancy,it is necessary to apply punitive damages.Based on the background of the revision of Copyright Law in China,this paper aims to protect the right of dissemination of film copyright owners.The problem that the on-demand behavior of using information network technology to disseminate film works to the public can not be controlled by the right of projection should be solved in the revised Copyright Law.In the Copyright Law for submission for review(hereinafter referred to as the Copyright Law for submission for review),the amendment of the definition of the right of performance and the right of broadcasting by legislators leads to overlap in the applicable object and scope of action.In addition,legislators cancel the right of projection and classify it as the right of performance,which is not in accordance with the collocation of Chinese terms.There is only "broadcast" but not "performance" for film works.Therefore,it is suggested that the definition of copyright law's right to submit manuscripts for review should be revised to control only live and mechanical performances,and that the right to show should be included in the scope of the right to play,so as to apply the grammar of Chinese and to control all non-interactive communication behaviors to the public using information network technology.In the system of compensation for infringement of network on demand,the application of punitive damages should be carefully considered.It is suggested that the applicable conditions of punitive damages should be amended to "malicious" and "infringement of copyright or related rights which has caused serious damage to the interests or potential interests of copyright owners twice or more" in the Copyright Law for submission to review,and that punitive damages should be calculated.On the basis of calculation,the current Copyright Law has no clear demarcation line between statutory compensation and damage compensation,which continues to be submitted to the draft of the Copyright Law for examination.Therefore,it is suggested that the application of tort liability should be differentiated between the two,and statutory compensation should be removed from the calculation of punitive compensation basis.