Study On The Inducement Of Copyright Infringement

At the beginning of the 21st century,the inducement of copyright infringement appeared in judicial practice as a new rule which located under the theory of indirect infringement in copyright law.This rule is considered as a by-product of balancing the development of new technologies and the protection of copyright owner's interests.As a type of indirect infringement,the inducement of copyright infringement possesses common characteristics of indirect infringement and has gradually developed its unique rules of application.Although copyright inducing infringement rule is rooted in the United States,many same new problems have also been caused in the practice of copyright in China under circumstances of the trend of global economic integration and the development of new technologies.Due to different legal systems and historical developments,copyright system in China is quite different from that in America.Nonetheless,there is no substantial difference in the ultimate goal of copyright legislation——to promote innovation;to maintain the balance of interests between copyright owners,technology providers,and the public;and to maximize social benefits.Similar challenges and dilemmas also is brought by the development of new technologies.Therefore,this article intends to study the developing process of copyright inducing infringement rule in America,to analyze current situation of legislation and judicature at home,and to study the reasons and histories behind the birth of this rule.On this basis this article ulteriorly aims to explore the constituent elements of copyright inducing infringement rule,and study how this rule can be applied in our country.This article consists of three chapters:The first chapter mainly analyzes the origin of the copyright inducing infringement.The development of new technologies leads to the failure of the old rules.Neither rules of instigation in tort law nor contributory infringement can solve the problems of online copyright infringement.This situation brings possibilities of the appearance of the inducement of copyright infringement.This chapter is arranged to illustrate the necessity and the inevitability of copyright inducing infringement rule by means of introducing technology backgrounds and legal backgrounds.Then the concept of the rule mentioned above will also be set forth.The composition of copyright inducing infringement is mainly discussed in the second chapter.Many countries lack legislation of copyright inducing infringement rule.However,they have developed the applicable rules of inducing infringement from practice.After analyzing this changing process,it is concluded from current judicial practice that the constituent elements of copyright inducing infringement include:(1)whether ISPs have the purpose of promoting copyright infringement(intention to induce infringement);(2)whether there is a direct infringement;(3)whether there is a causal link between above two elements.On this basis,necessities of each element will also be illustrated in this chapter.The third chapter focuses on the application of the rules of inducement of copyright infringement.In judicial practice,one of the major problems in the application of copyright inducing infringement rule is the determination of inducing intention and the act of inducement.The other one is the mismatching of adapting rules of instigation in cases of copyright inducing infringement.This chapter firstly analyses relationships between these two similar rules in tort law and in copyright law.Secondly,through summarizing and analyzing the classic cases at home and abroad,this chapter concludes three typical behavioral ways to determine the intention of inducement.It is also made clear that the intention of inducement includes but is not limited to these three ways.On the basis of the analysis above,this chapter proposes amendment advises to improve China's 2012 "Provisions on Several Issues" : increases of the list of manifestations should be added to the original Article 7(2),such as “the business model is based on large-scale infringements”,“set up lists and columns that are likely to be infringing”.Also,it should be made clear that the manifestations listed in the clause is not exhaustive.In addition,if legislation of secondary responsibility in copyright law is feasible,plan B which advises stipulating the constituent elements of inducement infringement can also be considered.