The Misreading And Clarifying Of "Sever Test"

In order to protect copyright in the Internet environment,?Copyright Law of the People's Republic of China ? added the right of communication through the information networks in 2001,stipulating that copyright owners have the right to provide works to the public through the Internet or other wired or wireless information transmission networks.However,in view of the rapid development of network technology and its complexity,the issues related to the right to disseminate information networks have also caused fierce controversy with the development of technology.First and foremost is the dispute over the identification criteria of“information network communication behavior”.At present,this debate is concentrated on the legal definition of providing deep linking behavior.Until the deep linking technology has not appeared,uploading the work to a server that is open to the public will result in the public being access the work at the time and place selected by the individual.The emergence of deep linking technology has caused public debate about whether the dissemination of information networks is limited to the act of uploading works.In other words,whether the act of setting a deep linking to the work in third-party website is equivalent to the act of uploading the work,and whether it constitutes an information network communication behavior.For a time,the academic and judicial practice circles have a lot of ambitions.The current main points of view include "server test","users' perception test","substantial replacement test","subsequent provision of standards" and so on.Under the "server test",only the work is uploaded to a server that is open to the public,so that the public can access the work at the time and place selected by the individual is the information network communication behavior.The "server test" is accepted by most courts in China because of its stability,objectivity,and easy application of the court.However,the questioning of the rationality of the "server test" in China's academic circles and judicial practice circles has not stopped.This paper considers the “sever test” to be a reasonable standard for the identification of information network communication behavior.Based on the case study of deep linking,this paper explores the rationality of "server standard" from the perspective of link technology links,relevant legislative provisions and balance of interests.The "server test" is reasonable,but it still has its specific scope of application.The “sever test” applies only to the “First Propagation Behavior”.Whether the chain-related behavior involved in network communication directly infringes the right to disseminate information network,the "server test" cannot be applied across the board.Otherwise,the infringement of the outer layer of the link technology will be rampant.