Research On The Infringement Determination And Legal Regulation Of Deep Link Providers

Link is an important information location technology in the Internet environment.Links can be used to locate network resources more conveniently,which greatly enhances the information flow of the Internet.As technology evolves,the types of links continue to innovate,with the development of deep links which can directly locate secondary web pages or resource files.Through deep link technology,network service providers enable network users to directly obtain works on their websites,which in turn bring commercial benefits such as clicks without paying license fees.Such practice infringes copyright owners' rights and breaks the balance of interests.At present,the judicial mainstream view on recognizing the infringement of the information network transmission right is based on the “Server Test”,that is,only the behavior of placing the work on a server which is open to the public can be recognized as the network transmission behavior subject to the information network transmission right.However,since the advent of deep links,the correctness of the "Server Test" has been more and more challenged.Upon certain opinions,the "Server Test" is difficult to resolve the conflict of interests between the chained website and the copyright owner and therefore should be completely abandoned.In this context,various scholars put forward many new standards such as “user perception standard”,“substantive presentation standard”,“new public standard”,“legal standard” and“follow-up standard”.After in-depth analysis,the author concludes that there are more or less theoretical flaws in the above new standards.As we all know,the information network transmission right originates from international intellectual property treaties,and the analysis of the criteria for the identification of information network transmission cannot be separated from the background and legal sources of international treaties.Based on the text of the WIPO Copyright Treaty(WCT),information network transmission behavior includes two explicit elements: one is through wired or wireless means;the other is that the publiccan get access to the works at any time and from any place chose by the person himself or herself.However,through in-depth analysis of WCT related legal principles,legislative purposes and background,it can be found that there are three extra implicit elements for the recognition of information network transmission behavior.First,the content of the information network transmission behavior should be limited to works.Second,information network transmission right only regulates the "initial behavior" of the transmission.Third,the information network transmission behavior should objectively form the transmission path of the works.According to the analysis of the above implicit requirements,providing deep links does not constitute an information network transmission behavior and shall not be regarded as a direct infringement.Similarly,using the "Server Test" to decide whether a behavior constitutes the information network transmission behavior is undoubtedly in line with the legislative intent of the WCT.However,since the "Server Test" is based on the hardware of the server,the questioning point of view argues that the “Server Test”cannot adapt to the development of technology,which is contrary to the WCT legislative intention of technology impartiality.The biggest problem with the above viewpoint is ignoring the fact that the law cannot predict the future and that the criteria for judging the legal facts cannot be set by the technology which is unknown in the future.From the technical perspective,the "Server Test" is most in line with the current computer technology background.First,the use of work on a computer cannot be separated from the reproduction process of the work.Second,the transmission source of "interactive transmission" should contain a complete copy of the work.Third,the continuous existence of the copy of the work on the network should require the use of a server as a storage device.Therefore,the legal evaluation of the technical characteristics of information network transmission behavior based on the "Server Test" should be considered correct at least in the current computer environment.Although under the theoretical system of "Server Test",deep links for works that have been freely transmitted on the network cannot be regulated as a direct infringement of the information network transmission right,the legitimate rights and interests of copyright owners can still be protected through other ways.First,the "free rider" behavior of a deep-link can be regulated by unfair competition.Under the circumstance where there is a competitive relationship between the chained website and the linked website,and where providing the deep link violates good faith and business ethics and causes economic losses to the linked website,according to Article2 of PRC Anti-Unfair Competition Law,the chained website constitutes unfair competition and the infringer shall bear corresponding legal responsibilities.Second,the infringer may be required to bear legal responsibility as the deep link destroying technical protection measures.If the copyright owner adopts technical protection measures to protect his work,and the behavior of providing a deep link to the chain website undermines the above technical protection measures,the copyright owner may rely on relevant provisions of the Copyright Law to pursue remedies and the chain owner shall therefore bear corresponding legal responsibility.