XXXI

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 technologies, the network service provider can be exempted from liability if it takes necessary measures such as deletion, blocking, and disconnection in a timely manner after receiving the notice of the infringed person when a network user commits an infringement by using the network service (the “safe harbor principle”).However, if the webcast platform agrees with the anchor to enjoy the intellectual property rights of all videos, and the video is stored in the server of the platform and transmitted to the public under its control,even if the provider deleted the relevant videos in time after learning that the videos have infringing contents, this provider’s liability shall not be relieved.

Case: Network anchor F held an online livestream on the platform D and she played about one-third of a popular song in this live.After the live broadcast, the live video was saved by the anchor on the live platform D.Viewers can log in to the live platform D to watch and share this video anytime and anywhere.The Music Copyright society of China, the legal right owner authorized by the song’s original author, brought Company D to court.During the trial, the Music Copyright Society of China made it clear that the infringement was not the act F did in the livestream, but the act of uploading the lives video to the live platform D for people to watch and share after the live broadcast.Company D shall bear the corresponding liability for infringing the Music Copyright Society of China’s right of information network dissemination.((2019) Jing 73 Min Zhong No.1384)

The court held that: The video involved in the case contains the song that has been played without the permission of the Music Copyright Society of China.The public can log in to the live platform to browse,watch, and share this video at the any time and at any place, which is a violation of the right of information network dissemination.First, according to the Live Broadcasting Agreement signed by Company D and the anchor F, the two parties agreed that all the intellectual property rights and ownership and related interests of works produced by the anchor F during the live broadcast belong to Company D.Although the anchor is the producer and uploader of the video, the anchor does not enjoy the intellectual property rights and ownership of these videos, and according to the principle of consistent rights and obligations, the anchor shall not bear infringement liability for the infringing content in the video.Correspondingly, since Company D is the owner of these works and enjoys relevant rights and interests, it shall naturally bear corresponding responsibility for any legal consequence arising from the works.

Second, 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 technologies, the network service provider can be exempted from liability if it takes necessary measures such as deletion, blocking, and disconnection in a timely manner after receiving the notice of the infringed person when a network user commits an infringement by using the network service (the “safe harbor principle”) according to Tort Law.Company D is not only the provider of network services, but also the owner and provider of audiovisual products on the platform, enjoying the benefits brought by these works.In this case, although it deleted the video in a timely manner after knowing that the video involved in the case was infringing, Company D cannot be exempted from responsibility.(https://www.daowen.com)

Third, the existence of a large number of users will also bring huge impacts and benefits.Live broadcast platforms cannot enjoy benefits while at the same time avoiding their obligations of review and supervision.They cannot allow infringements to occur and refuse to perform the obligations that accompany their rights, even for such a reason as the difficulty of monitoring a large amount of live broadcasts.Therefore, Company D cannot invoke the “principle of safe harbor” to relieve its liability.

Picture 19 Summary of This Case