Research On Regulating Webcast By Copyright Regulations

Webcast in China started around 2005 and boomed in 2016.Webcast not only creates huge economic benefits,but also causes a lot of copyright disputes,which are diversiform,far-ranging and complicated.At present,the academic studies have not formed a final conclusion about whether the webcast can be protected by the copyright law,to what extent it should be protected,and by what kind of exclusive right regulate.Relevantly,whether webcast can create new works,whether webcast can be regarded as fair-use and where the webcast organization stands in the legal system? These questions also need to be answered.In the existing judicial practice related to webcast,the situations of “similar cases with different judgments” are also common,which impact the authority of law and damage the owners' interests.This study focuses on regulating webcast by copyright regulations,and the main methodologies are literature research,case analysis and comparison,then describes the development of webcast and relevant legal systems and judicial practices,and analyzes the copyright regulation mechanism and international conventions closely related to webcast.Based on the foreign experience,this paper clarifies the status of webcast in copyright law,explores the deficiencies and confusion of copyright law when facing webcast and gives suggestions,in order to regulate the copyright disputes caused by webcast.This study is divided into the following five parts:The first part is an overview of the current situation of webcast and its copyright legislation.Webcast is the extension of broadcast technology to the Internet field,which records and transmits at the same time as broadcast.Based on the comprehensive discussion of all parties,this study defines webcast as a communication which based on the Internet and is an open information dissemination using signal acquisition and conversion technology,and divides webcast into the network live-broadcast and the network rebroadcast.In this study,Webcast has three technical characteristics,which are long-distance public communication,network cable communication and non-interactive communication.In addition,there are few laws about webcast in China,and there is no clear basis for the regulation of webcast by copyright law,which is supplemented by judicial guidance.Therefore,this part summarizes the copyright questions caused by the webcast,which paves the way for the next part of the research.The second part discusses the webcast from the aspects of copyright object and exclusive right,and summarizes the existing regulations combined with relevant cases.At present,the academic and practical circles have summed up two regulations based on webcast scenes or webcast signals for webcast copyright disputes.The regulation based on the webcast scenes actually takes the scenes formed by webcast as the protection object,but in practice,the originality of the webcast scenes may not be recognized by the court,and there are doubts about the fixity of the scenes,so the regulation based on webcast scenes does not bring sufficient protection to the obligee.And the regulation based on webcast signals regards the webcast organization as the broadcasting organization of copyright law and affirms its identity as the communicator,but the copyright law of China does not protect the broadcasting organization right in the network environment,so there are many difficulties in the regulation based on webcast signals.In the aspect of exclusive rights,the choice of the exclusive right regulation of webcast in China has been hovering between the right of performance,the right of communication through information network and the right of broadcasting,but all the three exclusive rights are difficult to effectively regulate webcast.The judicial practices finally choose "other rights" to regulate webcast,and this right gradually becomes the current mainstream choice.The third part analyzes the two dilemmas of the current copyright law system when facing webcast: one is confusion and ambiguity,that is,the webcast fails to have a clear position in the copyright law system;the other is neglect and blank,that is,the existing copyright law fails to effectively protect the rights and interests related to webcast.From the perspective of the copyright law on webcast,the protection of the webcast scenes blurs the essence of webcast as a communicator,and regarding webcast scenes as video recording also leads to the chaos of the copyright law,and resulting in the confusion of the right subject and object of webcast.The legislation of technicism results in the complexity of the exclusive right system,while the generalization of "other rights" aggravates the uncertainty of copyright protection,which makes the recognition of the exclusive right of webcast vague.From the perspective of the protection of the existing copyright law for the rights and interests related to webcast,the neighboring right system cannot guarantee the control of the obligee over webcast,and the legitimate rights and interests of the webcast organizations are also ignored by the copyright law,which makes the relevant rights and interests fall into the blank;from the perspective of the protection of new technology,the fair-use of webcast is also ignored by the judicial practice.In the fourth part,according to the division of copyright system and authorship system,this study summarizes the foreign experiences of the regulation of webcast by copyright law.In the copyright system countries such as Britain and the United States,according to the "low originality standard" for works,they can regard webcast scenes as works to protect;while in the authorship system countries such as Germany,they regulate webcast by the technology-neutral exclusive rights system.As China's copyright law is the authorship system,we should be cautious to learn from the British and American countries in regulating webcast,but should learn from the technology-neutral legislation of other countries of authorship system to reshape China's copyright law system,so as to provide a higher level of domestic legal regulation for webcast while meeting the minimum level of protection requirements of international treaties.The fifth part puts forward some legal suggestions for regulating the copyright disputes of webcast in China.One is to amend the law,that is to adjust the existing copyright law and relevant norms,partially reconstruct the exclusive rights system with the principle of technology neutrality,include webcast into the scope of broadcasting right,and clarify the status of webcast in copyright law,and include webcast organization into the scope of broadcasting organization,so that broadcasting organizations can protect their legitimate rights and interests in the field of Internet.The second is a tortuous way,that is to regulate webcast copyright disputes with the general provisions of the anti-unfair competition law,and to replace the expansion of the copyright law with the application of the competition law,so as to leave room for technological innovation while protecting the relevant private interests,and maintain the public interests and good competition order.