Research On The Determination Of Duty Of Care In Copyright Infringement Of Short Video Platforms

The new generation of scientific and technological revolution has led mankind into the intelligent era.The algorithmic recommendations brought by the power of science and technology are affecting human life,including the legal field,in an unprecedented depth.The algorithm recommendation model produced in the short video industry and the rapid development of science and technology makes it difficult to control the scope of dissemination of infringing content,and the use of algorithm recommendation by short video platforms has obviously involved the online dissemination of work information.From the case of Beijing iQiyi Technology Co.,Ltd.v.Beijing Byte Dance Technology Co.,Ltd.for infringement of the information network dissemination right of Yanxi Raiders in China,it seems that with the intervention of the algorithm recommendation model,short video platforms are increasingly deviating from the position of technology neutrality due to their unique industrial operation characteristics.Therefore,compared with many network service providers,short video platforms have special characteristics,and the criteria for determining their duty of care should be redefined in light of their own characteristics.Based on the duty of care of network service providers,and the relevant provisions of the Civil Code on the "notice-counter-notification rule" and the "red flag rule" of network service providers,this paper analyzes the focus of disputes over the determination of the duty of care of short video platforms in China’s "first case of algorithm recommendation",and refers to the experience of the European Union,where the copyright industry is developed,and the United States,where the copyright and Internet industries are evenly matched,to put forward suggestions for improving the determination of the duty of care of short video platforms in copyright infringement.It is divided into four parts.The first part is a study on the connotation of the duty of care of short video platforms,briefly introduces the particularity of short video platforms,and after clarifying the basic connotation of the duty of care,the legitimacy of the duty of care undertaken by short video platforms in copyright infringement disputes is proved through risk control theory,cost control theory and interest balance theory.This extends the analysis of the content of duty of care in the short video platform under the algorithm recommendation mode.The second part mainly analyzes the problems existing in the handling of copyright infringement by short video platforms in China’s theoretical circles and judicial practice through the case of iQiyi v.Byte Dance’s infringement of the information network dissemination right of Yanxi Raiders,which combines the "notice-counter-notification rule","red flag rule" and "taking necessary measures",including the unclear boundary between the duty of care and the obligation of review;The standard of "should know" in the duty of care for popular film and television works is unclear;The standard of duty of care under the "direct economic advantage" factor is unclear.The third part looks for experience in regulating network service providers at the legislative and judicial levels in the EU and the United States,respectively,and looks for experience worth learning from setting standards for the duty of care of short video platforms under China’s algorithm recommendation model.The fourth part is based on the previous research,and puts forward sound suggestions for the determination of the duty of care of short video platforms.First of all,we must uphold the principle of balancing interests,deny the neutrality of platforms,and build a copyright protection principle mechanism that balances the interests of all parties.Secondly,the duty of care of short video platforms is subdivided into prior review obligations,filtering obligations during events,and post-event prevention obligations in chronological order,so as to redefine the criteria for determining the duty of care and use them as the criteria for judging whether short video platforms are at fault in copyright infringement disputes.