Research On The Defining Standard Of Information Network Communication Behavior

With the rapid development of network technology,specific protection issues are more complex and changeable.The convenience and secrecy of network communication technology also make copyright infringement incidents happen from time to time.At present,it is urgent to standardize and effectively deal with the dispute over the definition standard of information network communication behavior(hereinafter referred to as the definition standard),clarify the adjustment scope of information network communication right,and balance the interests of all parties.The copyright law stipulates the right of information network dissemination is to control the act of information network dissemination.The actor,in addition to the special circumstances of reasonable application and legal permission,carries out the act without authorization,and shall bear the tort liability according to law if he meets the requirements of the right of information network dissemination.Therefore,the definition of information network communication behavior becomes the key to define the adjustment scope of information network communication right.Many countries,including China,have been used to apply a certain definition standard to restrict the information network communication behavior.However,there is no conclusion as to which criterion is applicable.The controversial focus of the definition standard mainly focuses on the connotation of "work offering behavior"(hereinafter referred to as "work offering behavior")in the right of information network communication,and the main purpose of the dispute is to solve the deep link legal nature.Therefore,starting from the relevant laws and regulations on the right of information network transmission,this paper analyzes the constitutive requirements of "work offering behavior".It is considered that the "act of offering works" is not limited to the "act of initial offering",and its constitution can meet the two requirements of "mode of behavior +effect of behavior".The "mode of behavior" element refers to the need to provide the path to obtain works through necessary technical measures,among which the implementation of technical measures has reached the extent of destroying the obligee's control over the dissemination and benefits of his works in the network environment.The "behavioral effect" element refers to the possibility of making the work available to the public.Based on the different forms of deep links,it can be divided into ordinary deep links,boxed links and hotlinking.Based on the analysis of the constitutive elements of "work offering behavior",it is concluded that the nature of general deep links and framed links are similar to shallow links in nature and belong to link services,which generally don't constitute infringement,and improper implementation at most constitutes indirect infringement.The characteristics of hotlinking completely meet the constitutive requirements of "work offering behavior",and illegal hotlinking directly infringes the right of information network transmission.In the following chapter,the connotation of "work providing behavior" and the legal nature of the deep link are clarified,which correspond to the definition standard.The user perception standard and the substantive presentation standard are too subjective.The former standard relies on the user's judgment,while the latter standard focuses on providing effect.The server standard can not realize the reasonable remedy of all types of "work offering behavior" and may damage the interests of the obligee to some extent.Based on the facts of the case and the analysis of the infringement status quo,the substantive substitution standard believes that "work offering behavior" includes "initial offering behavior" and other behaviors with the nature of offering,and hotlinking is one of them.The ideological core of the substantive alternative standard may be able to combine theory and practice.The selection of the definition standard should first comply with the legal provisions,specifically,the correspondence with the constitutive elements of "the act of providing works" and the deep link with the legal nature.Secondly,from a deeper level,the criterion of the definition of the balance of interests of copyright protection.In terms of the balance of interests in the protection of information network transmission right,the basic point is how to stimulate the development of commerce and the innovation of Internet science and technology.It is found that the connotation of the material substitution standard not only conforms to the original intention of the legal provisions,but also can be regarded as an eclectic interest balance measure to protect the right holder.The substantive substitution standard should be a practical standard to maintain the balance of interests of the right subject in the network environment.