The Research About Joint Infringement For The Right Of Dissemination Via Information Networks

With the diversification of cooperation between Internet Service Providers and Internet Content Providers,the disputes about online infringement have become more complicated.From the case of IPTV,the same facts have led to different conclusions.It shows that how to determine the responsibility of the Internet service provider under the cooperation situation becomes a difficult point in the judicial judgment.It is need to solve the confusing problem about how to apply the " joint infringement clause for division of labour " to regulate the joint infringement under the cooperation situation.The research of this problem can be divided into three parts.The first part analyzes the reasons for why there had different judgments of the case about IPTV.There are not deeply to acknowledge about the direct infringement for the right of dissemination via information networks and the cooperation relationship between Internet Service Providers and Internet Content Providers.What's more,the application of the rules about copyright is not clear.The second part is the analysis of this problem.First of all,it should apply the rules about the majority infringement to judge the behaviors of the Internet Service Providers and Internet Content Providers when there were cooperation.Instead of just use the definition of the right of dissemination via information networks to consider that it would never have direct infringement if someone didn't uploading the works.Secondly,to analyse the limit to correctly distinguish the rules about joint infringement clause for division of labour,contributory infringement and safe harbors.The difference between the joint infringement clause for division of labour and contributory infringement is that the former is based on subjectively joint intention and the Internet Service Provider is responsible for all the actions in cooperation.The latter focus on subjective fault and the Internet Service Providers is responsible for the part that provides substantial help.The relationship between the joint infringement clause for division of labour and safe harbors is that if the behaviors is according with safe harbors,the Internet Service Provider would not be judged for joint infringement.But the application should be strictly.The third part is the suggestion of thisproblem.Through the analysis of the above problems,The first thing to do is that to judge whether the two parties have a cooperative relationship.Secondly,it should analyse the subjective and objective constituent elements.In subjectively,there is a consensus on providing works.Objectively,there is a division of labor and cooperation.In judicial practice,it should more focus on whether have the fact of division of labor and cooperation.What's more,The defense only apply the pure technical behavior is an exception to the joint infringement of division of labor and cooperation.Finally,the evidence can be based on the cooperation agreement and the specific facts.When the specific facts do not match the cooperation agreement,the specific facts shall prevail.