With the vigorous development of the live stream industry, copyright infringement disputes continue to occur. If the host presents a copyrighted work of others without permission during the live stream, they shall be liable for infringement without reasonable defense, and the platform that provides the live stream service may also be held accountable. This article introduces in detail the behavior of using other people's works in the live stream situation, the types of rights that the copyright owner can claim, and analyzes the considerations when judging whether the live stream platform is at fault.
The anchor's use of others' works during the live stream and the determination of infringement
At present, the live stream industry is deeply integrated with social, e-commerce, media, education, entertainment, sports and other industries. There are not only platforms that specialize in live stream services in the Internet environment, but also e-commerce, short video, and other platforms have developed live stream functions. There are commercial live streams led by MCN organizations and public welfare live streams focusing on education and cultural exchanges. There are not only professional anchors with professional expertise or industry influence, but also ordinary network users as anchors to show and share on the platform. In the live stream scenario, there are different ways for the anchor to use others' works, and the different ways of use could affect the determination of infringement and the assumption of liability. Specifically, the presentation of works in the live stream can be divided into direct and indirect ways.
Direct presentation
Direct presentation means that all or fragments of musical works, audiovisual works, text works or audio and video products that others enjoy copyright are directly presented during the live stream. For example, playing video clips, game screen clips or sports event screen clips during the live stream; playing original short videos made by others; using other people's music as background music during the live stream or using other people's artworks as the main background screen in the live stream process; singing and playing musical works or reading text works during the live stream.
Direct presentation of works could be divided into two situations: the first is that the use of other people's works is a major link in the live stream process or the live stream's main content. Regardless of whether it is a professional anchor or an ordinary user, the dissemination of others' works to the unspecified public constitutes direct infringement. The technical feature of live stream is that the device's camera collects video images and microphone collects audio, and then the audio and video are encoded by software and transmitted to the live stream platform. Although temporary copying occurs during data transmission, this is a technical phenomenon that does not infringe on the owner's copyright. Due to the real-time nature of live stream behavior, it does not belong to the information network dissemination behavior of "allowing the public to obtain works at a time and place selected by the public" stipulated in China's Copyright Law, and cannot be included in specified rights such as the right of projection and streaming. The performance right stipulated in China's Copyright Law refers to live performances and mechanical performances for live audiences, and does not include transmission to audiences outside the place where the performance takes place [1]. Therefore, talking, playing, and singing in the live streaming process is not within the adjustment range of the performance right. From this point of view, the right owner can only invoke the "other rights which shall be enjoyed by the copyright owners" as stipulated in Article 10, Paragraph 1, Item 17 of the Copyright Law to control the use of the work in live webcast without copyright owner's permission.
The second direct presentation situation is: the main purpose of the live stream is not to present the work, but to comment on and explain the work. Under this circumstance, it is necessary to use the "three-step test" to determine whether it belongs to the "appropriate citation" as stipulated in Article 22, Paragraph 1 (2) of the Copyright Law. In the judging process, it is necessary to focus on factors such as the comparison between the number of uses and the overall work, and consider the impact of the use behavior on the value of the work and the impact on the potential market of the work. It should be noted that for game's live streams, which account for a relatively large proportion of the live stream industry, although "the host's commentary and other content have a certain degree of originality, they are still in an auxiliary and foil position relative to the game screen. The game screen is still live stream. Therefore, although the live stream's screen containing the host's commentary can constitute a deductive work, the low degree of conversion makes it difficult for the live stream to constitute fair use." [2]
Indirect presentation
Indirect presentation refers to the indirect presentation of artworks, photographic works, and video clips of other copyrighted works during the live stream. For example, live streaming the music played in the mall when you visit the mall; live-streaming the TV series that is being streamed on the TV shown on the screen when you are at home. In the case of indirect presentation, the work's presentation is not the main purpose of the live stream, but only a small part of the live stream content or the part that cannot be avoided. Therefore, indirect presentation generally does not affect the work's normal use, nor does it harm the copyright owner's legitimate interests, so it generally does not constitute infringement. Moreover, live streaming has become a part of the public's cultural and entertainment life, and indirectly presented works should not be given excessive protection on infringement grounds.
The duty of care and responsibility of the live stream platform
The live stream platform provides live stream technical services for Internet live stream publishers and users. This service does not belong to the provision of information storage space or the provision of search and link services as stipulated in the Regulation on the Protection of the Right to Communicate Works to the Public over Information Networks, nor does it belong to the provision of network automation according to the instructions of the service object Access service or automatic transmission service. For the issue of the live stream platform's responsibility, Article 36 of the Tort Law should be applied, and the provisions of the Regulation on the Protection of the Right to Communicate Works to the Public over Information Networks and its judicial interpretation can be used as a reference. Whether the platform should bear joint liability for the host's infringement, the core lies in judging whether it is at fault. In the process of fault judgment, the definition of the scope and degree of its duty of care is the problem's starting point. The scope and extent of the live stream platform's duty of care for live content depend on many factors, among which the following points need to be paid attention.
Need of clarifying the legal relationship between the platform and the anchor
There are live stream studios for ordinary network users on the platform and anchor online channels operated, managed or promoted by studios, brokerage companies, and guilds. When defining the platform's responsibilities, it is necessary to examine the platform, anchors, and third-party organizations' rights and obligations.
Under normal circumstances, ordinary users as anchors need to click to agree to the platform's live stream agreement when they open a live channel. The platform provides services such as information release, technical support, and collection and reward for live stream content publishers, so that live stream publishers can conduct live streams, carrying out interactive activities, accepting gifts, etc. The relationship between users and the platform is a service contract. The platform has weak control over the host's behavior, and it is difficult to know the infringing nature of the host's behavior in real-time. Therefore, in terms of platform liability, only when the network service provider knows or should have known that the network user uses its network service to infringe others' civil rights, but has not taken the necessary measures, the platform party and the user shall bear joint liability.
Under special circumstances, the platform provides more than just technical services. The platform also forms legal relationships with well-known anchors or brokerage companies to which the anchors belong, such as employment, commission, and cooperation. Both parties agree on the payment of remuneration or the settlement and distribution of income generated from the content. In this case, it is necessary to comprehensively consider whether the host's behavior is a duty behavior, whether the platform sets and arranges the live stream content for the host, and the ownership of the property rights arising from the live stream content. For exclusive anchors discovered, nurtured and signed by the platform, the platform will regulate, guide and control the anchors' behaviour. At this time, the platform has a higher duty of care. The platform cannot shirk its responsibility for the live content planned and arranged by the platform or the live content that the platform has rights and benefits.
When applying the "notification-delete" rule, the particularity of the live stream business model shall be considered
First of all, live streams' fleeting nature requires that the "notification" procedure set by the platform be convenient and straightforward. Secondly, live streams' immediacy characteristics make it challenging to effectively implement the "redirect notification" procedure. Therefore, for infringement complaints, the platform needs to consider the principle of proportionality when taking necessary measures such as suspension of playback, restriction of rights, and freezing of accounts. It is necessary to protect the interests of copyright owners and prevent the host's rights due to wrong complaints, malicious complaints, and improper measures that bring harm to the anchor's rights and benefits. In fact, for infringements in the live stream process, applying the "notice-delete" rule has certain limitations, and it is challenging to play the system's function and value effectively. For copyright infringement in the live stream mode, it is more effective for the platform party and the right holder to cooperate in rights licensing and prior prevention and control of infringement.
When judging whether the live stream platform knows or should know the infringing live stream content, the actual content control capability of the platform shall be considered
According to the "Internet Live stream Service Management Regulations", internet live stream service providers implement hierarchical and classified management according to the content COLUMN category and user scale of the Internet live stream, and review the live content. The live stream industry implements a combination of machine review and manual review to control live stream content. The machine review principle is that through screen capture technology and machine learning technology, the system uses artificial intelligence, algorithms and OCR technology to identify infringing content. Due to the real-time nature of the live stream, the concentration of peak hours, and a large number of live streams, the labor cost of manual review is high and difficult. Therefore, the platform generally adopts a machine review method as the main and manual review as a supplement. Regarding content that infringes copyright during the live stream of the host, when examining the achievable scope of the platform's duty of care, it should be noted that the platform mainly deals with complaints after received them, supplemented by taking active preventive measures in advance. Regarding platform liability determination, it is necessary to avoid inappropriately aggravating the platform's precautionary obligations. It is also necessary to consider the platform's ability to judge whether the live content infringes copyright. The live stream platform has a more prudent duty of care for the currently popular film and television dramas and the works in the early warning list of key film and television works, and can prevent and control infringement by setting "black words (sensitive words)" in the system. It is also necessary to avoid the misjudgment of the fair use of the work caused by machine review errors. As content filtering technology becomes more intelligent, the accuracy of machine review will be greatly improved, and the platform's actual control capabilities for live content and the ability to prevent and control copyright infringement will continue to increase.
No inevitable relationship between algorithm recommendation and platform's fault
Algorithm recommendation has been widely used in many Internet business models. The algorithm recommends and matches works to users according to their browsing habits and preferences on the live stream platform. The application of technology realizes this process. Therefore, when dealing with copyright infringement disputes, the principle of technology neutrality should be adhered. When judging whether network service providers should know whether network users use network services to infringe copyrights, the "Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks" include consideration factors that include whether the network platform "selected, edited, modified, recommended works, performances, audio and video products, etc.". Algorithm push should not be regarded as belonging to the "choice" and "recommendation" mentioned in this clause. "In view of the personalization and privacy of algorithm push-in operation, the personalized push should not be regarded as behavior of unified 'active editing' or 'setting a list'. As long as the algorithm does not implement instructions to add active screening and push infringing content or standards, network service providers should not be regarded as ought to know and constitute a subjective fault." [3]
Conclusion
Platform responsibility is related to the balance of interests, involving relief for the infringed, the imposition of the platform's duty of care, the protection of public rights, and the network industry's development. We should examine the promotion of innovative business models by service providers in the Internet age and their obligations and responsibilities from a dynamic perspective. When analyzing the live stream platform's commitment, it is necessary to pay attention to the differences in the business models of different categories such as games, film and television, talent, life, education, and making friends. It is also necessary to pay attention to the difference between the platform's duty of care in intellectual property infringement and other illegal activities. The difference in the situation should not adopt the same standard. When determining the boundaries of the duty of care of the live stream platform, it is necessary to consider the degree that it can objectively achieve, taking into account the interests of different subjects. It is essential to require the live stream platform to adopt technical prevention and control infringements based on the principle of utmost good faith, and to prevent excessive machine review and filtering measures being overly radical, therefore harms the right of Internet users to express and obtain information freely.
With the growing popularity of live stream culture, live stream has become a way of interpersonal communication and interaction. On the one hand, platform supervision and judicial adjudication should be used to raise the host's awareness to respect copyright. On the other hand, the right owner should also moderately tolerate the presentation of works in the live stream that do not harm the copyright owner's legitimate interests. In the long term, the continuous development of the live stream industry requires the platform to hold more content with copyright, and create content by purchasing copyrights of film and television works, encouraging original content production, reaching licenses with copyright collective management organizations, and cooperating with copyright owners to create diversified live stream ecology.
[1] Wang Qian: "On the Application of the Right of Performance in the Internet: Also on the Definition of the Right of Performance in the Draft Amendment of the Copyright Law", in "Journal of Comparative Law", Issue 6, 2017.
[2] Jiao Heping: "Research on the Fair Use of Copyright in Online Live stream of Online Games", published in "Science of Law (Journal of Northwest University of Political Science and Law)" 2019-05.
[3] Xiong Qi: "Information Push Algorithms and ISP’s Contributory Infringement", published in "China Review of Administration of Justice", Issue 4, 2020.
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