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According to the Tort Law and Regulation on the Protection of the Right of Information Network Dissemination, the “safe haven principle” means that, in general, if a network service provider only provides network services such as automatic access, automatic transmission, information storage space, search, linking, and file sharing technology, when a network user commits an infringement by using a network service, the network service provider may be exempted from liability after taking necessary measures such as deleting, blocking, and disconnecting the link in a timely manner after receiving notification from the infringed person in accordance with the law.

However, if an online service provider provides network users with an unauthorized work which can be used as a background music for users to perform, and users can record, upload, and share the performing videos through the APP, or if it actually participates in the infringement of the work (such as failure to perform the review obligation, acting as the infringer itself, etc.), the “safe harbor principle” is not applicable and it may infringe the copyright owner’s right of information network dissemination.

Case 1: Company A is the operator of the mobile App “X show”.Through this application software, network users can choose their favorite music works as background music to perform, record, upload and share their performing videos.The Music Copyright Society of China was authorized as the right owner of a musical work and found that there are many users exploiting this work on the APP without permission.Therefore, the Music Copyright Society of China claimed that Company A’s act of providing users with the work involved in the case to organize public performances through this APP without its permission constituted an infringement.Company A argued that it was a music platform and had not received a notice of infringement from the Music Copyright Society of China.The safe harbor principle should be applied to this case so the corresponding legal liability should be relieved.Even if the court determined that the liability cannot be exempted, the amount of economic loss and reasonable expense claimed by the Music Copyright Society of China was unreasonable not only because the work involved was not popular, but also because the musical work represented on the APP was a fragment and the Music Copyright Society of China did not submit any evidence to prove the loss it suffered as well as reasonable expense.((2017) Jing 0105 Min Chu No.35797)

The court held that: Company A provided users with the unauthorized case-related musical work, which internet users could then use as background music to perform, record, upload, and share as performing videos through the APP.Meanwhile, Company A provided network users videos which contained these case-related musical works.These acts violated the copyright owner’s right of information network dissemination and Company A shall assume the legal liability for compensating the loss.The court ruled that Company A shall compensate the Music Copyright Society of China for the economic loss and reasonable expenses,altogether RMB 6,000 yuan, based on Company A’s subjective fault and the nature and seriousness of the tortious acts.

Case 2: Z and X are the songwriters of the musical work W.They have complete copyrights of this work.Company D is the developer of the game Q, in which W was once used as background music.At the same time, it can be found that after searching Q through the search engine S, the interface of game Q appeared and can be directly entered.(https://www.daowen.com)

Z and X believed that Company D had not obtained authorization in advance, and the unauthorized use of the song “W” constituted an infringement of the music copyright.At the same time, they advocated that Company S as the case-related game promotion platform shall bear joint and several responsibilities.((2017) Jing 73 Min Zhong No.2225)

The court held that: Company D used the song W as background music in game Q’s login interface without permission, infringing the right of information network dissemination that Z and X enjoyed of the work.

Regarding whether Company S should be jointly and severally liable for the infringement as the game promotion platform involved in the case, the court held that according to the evidence, Company S cooperated with Company D to promote game Q on its search engine platform.The above-mentioned song was provided by Company D with Company S then placing the song on the game login page.After the cooperation ended, Company S did not delete the songs involved.The game involving the infringing music work actually exists on the website operated by Company S, and Company S participated in the promotion of the game.Therefore, Company S cannot be exempted from liability by the “safe harbor principle” and should bear liability for infringement.In summary, in the cooperation and promotion of the game involved in the case,Company S and Company D’s unauthorized use of Z and X’s copyrighted song infringed the right of information network dissemination, and they should bear joint and several liability for their infringement.Regarding the specific amount of economic loss, the court took into account the specific factors such as the use of the work, the scope of dissemination,the scale of the infringing website to decide the compensation amount of over RMB 40,000 yuan that Company D and Company S need to pay for X and Z’s economic loss and reasonable expenses.

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