May 18, 2016, Shanghai Law Journal B06: Legal Forum (Lu Fengyu, Liu Le). The provisions on “the right of communication through information network” in China directly originate from Article 8 of the World Intellectual Property Organization Copyright Treaty (WCT) concluded under the organization of the World Intellectual Property Organization in 1996, which specifies that the right of communication through information network means the right to make available to the public a work, performance, or sound or video recording, by wire or by wireless means, in such a way that members of the public may access the said work, performance, or sound or video recording from a place and at a time individually chosen by them. The network users and network service providers, who provide the works of which the right of communication through information network is owned by the right holder without permission, infringe the right of communication through information network.
“No-skipping deep linking” is the product of constantly improved internet technology brought by the continuous development of society. In the juridical practice, due to the different cognition to its nature, there are different standards for the affirmation of infringement and assumption of liability for such cases based on different views. At present, there are mainly three standards. 1. Server Standard. For a long time, the courts confirm the direct infringement of the right of communication through information network based on the server standard. This is an objective standard. If the content of information is stored on the server of website creating the links, the behavior of the website creating links is just communicating information through information network. If beyond reasonable range of use provided by law without permission of the right holder, direct infringement upon the right of communication through information network is constituted; if the content of the information is not stored on the website creating the links, and the website provides the search and link services to the public with the technology of no-skipping deep linking, the behavior of website creating the links is provision of network service, and does not constitute the infringement upon right of communication through information network. Under such circumstance, it is required to further investigate and judge whether the website creating the links constitutes an indirect infringement and if constituting the indirect infringement, whether the liability for compensation should be assumed. In order to define the scope of legal responsibility of network service providers, the tortious liability in the field of internet including search engine shall be confirmed. America formulated the Digital Millennium Copyright Act in 1998, in which the safe harbor principle is proposed for the first time. Such principle is adopted in the Regulations on Protection of the Right of Communication through Information Network in China. Such principle provides that the network service providers providing search or link service to the users will not assume liabilities if they unlink the infringing works, performances, and audio and video recordings upon receipt of the notification of the right holders (by letter, fax, email or other means); however, if they have known or should have known the infringing nature of these works, performances, and audio and video recordings, they shall assume the joint liability for tort. According to the safe harbor principle, in the process of trying such cases, the liability of indirect infringement is applicable to the principle of liability for fault, i.e. the network service provider has known or should have known the infringement. In the practice, in addition to determining whether the website creating the links has known or should have known by finding out whether it has deleted the links upon receiving notification, the court may determine the subjective fault by fully considering such factors as the ability of the website creating the links to manage information, whether the reasonable measures have been taken to prevent infringement and whether they have actively edited and recommended the content of information based on Several Provisions of the Supreme People's Court on Issues Concerning Laws Applicable to the Trial of Civil Dispute Cases Over Infringement Upon Right of Communication through Information Network. Therefore, as to the behavior of providing network service such as no-skipping deep linking, only under the situation that the actor has no subjective fault, the safe harbor principle will apply to the actor and the actor will assume no liability for compensation. 2. Standard of User Perception. The standard of user perception is a subjective judgment standard on the basis of the information source perceived by the users, i.e. the outer manifestation of network technology provided by the network service provider makes the users perceive that such website provides the information or makes the users believe that they can directly obtain the works from such website. In such case, the behavior of the actor just constitutes the provision of works. When applying to this standard, creating no-skipping deep linking by the network service provider makes the general public consider in the perceptual intuition that the information they obtain from the website creating the links, and unable to judge that the information they obtain actually derives from the website linked. Although the website creating the links has not stored the content of information in the server, the users think that they provide the content service rather than technology service. Consequently the direct infringement upon right of communication through information network is constituted. For example, in the case of copyright infringement tried and concluded by Beijing Haidian District People's Court, the defendant provides the users with the online play service on its website with the content directly obtained from other websites by adopting the method of nested linking (i.e. deep linking). And during the whole process of play, the URL of user client is always under the website of the defendant, but the defendant's website has not stored or downloaded the video. After trial, the court believes that under the normal situation, the provider of search engine service shall search the network resources through software program, find out the relevant network resources and provide the users with the link address of source webpage, instead of directly displaying the content by the website creating the links. Therefore, the behavior of the defendant is not the provision of network service, but the behavior of directly providing the users with the contents, which infringes the right of communication through information network of the plaintiff. 3. Substantial Alternative Standard. In addition to the server standard and the user perception standard, in the judicial practice, infringement is also confirmed by adopting the substantial alternative standard. The substantial alternative standard means that the website creating the links should not directly provide the users with the content of information by substantially replacing the website linked, and should not obtain the benefits of the website linked through communicating relevant information. According to such standard, for the behavior of creating no-skipping deep links, from the view of result, the users through the website creating links may directly obtain the content of information not via the interface of website linked. The server that stores the information of the website linked in such stage is equivalent to the remote server controlled by the website creating links, and the website creating the links have substantially replaced the website linked to communicate the works to the public. And the website creating links uses the network disk broadband resources of the website linked for free, which makes it possible for the users to obtain the works at such time or place they select, and to some extent the website creating links receives the benefits of communication which originally belongs to the website linked. Although the website creating links has no content of information stored in the server, it plays the content of information without authorization on its own website, which causes the result of substantially replacing the website linked. Consequently, the website creating the links is affirmed to have provided the works and infringed the right holder’s right of communication through information network.
