Analysis on the Application of “Safe Harbor” Principle in Short Video Platform
Zhai Jingfang, Senior researcher, Policy Research Department, Sohu Law Center
Short video, as a new media product, integrated with sound, text and image, is more vivid in the way of transmitting information, so it is loved by many users. However, with the rapid development of short video industry, infringing cases in short video field can not be ignored. Typical examples include cutting other people’s films and TV works into fragments for uploading, intercepting classic clips of film and television dramas, and splicing them into short videos for dissemination, and using other people’s music works for short video content. These unauthorized use of other people’s works naturally constitute an infringement.
Now the short video industry is developing rapidly, and the infringement of short video is becoming more and more serious. As a channel for short video content distribution and dissemination, the short video platform which plays an important role in short video industry chain, should perform a higher duty of care and shoulder its own platform responsibility as long video sharing platform does. Whether short video platform can be applied to the principle of safe harbor should be analyzed concretely according to the subjective state of the platform to user’s infringement, whether the platform benefits directly from the infringing content and whether it is timely and appropriate to fulfill the deletion obligation and so on.
Short video, as a new media product, integrated with sound, text and image, is more vivid in the way of transmitting information, so it is loved by many users. However, with the rapid development of short video industry, infringing cases in short video field can not be ignored. Typical examples include cutting other people’s films and TV works into fragments for uploading, intercepting classic clips of film and television dramas, and splicing them into short videos for dissemination, and using other people’s music works for short video content. These unauthorized use of other people’s works naturally constitute an infringement. However, what is the responsibility of the short video-sharing platform here? What is the difference between it and the long video platform in the duty of care? Can it be defended in accordance with the principle of safe harbor? This series of issues has become the focus of discussion. By comparing duty of care of long and short video platforms and combining with applicable conditions of safe harbor principle, this paper analyzes duty of care and the responsibilities of short video platforms under different circumstances.
Comparison of application of principle of safe harbor in “long and short video
Short video, which is generally considered to be less than five minutes, is disseminated through PC and mobile phone. With strong social attributes, low creation threshold, short viewing time and convenient watching site and other features, the short content of short video is more suitable for the fragmented content consumption habits of users in the mobile internet era. In contrast, long video generally refers to video of over half an hour, which is mainly film or TV drama. Compared with short video, after long-term development, long video has gradually formed a more standardized market environment. More mature mechanisms have formed in duty of attention and responsibility of video platform, but short video is still exploring in these aspects. This paper combs several typical cases of long video and short video infringement to compare the attitude towards platform responsibility for long and short video content and judicial practice.
The causes and trends of differences in the application of the principle of safe harbor
Through the above comparison, it is found that in judicial practice, the platform has a high duty of care to long video uploaded by its users, while not short video. The main reason is that it is impossible for the obligee to license a movie and TV work which spends a lot of time and money to a certain user. Therefore, the platform pays great attention to the presupposition of “infringement” of long video. On the contrary, due to existence of a large number of user’s selfie videos for a few minutes, while some of the short videos are legally uploaded, therefore, in the early short video infringement cases, the court considered that the platform has no obligation of care.
However, “the above inference is true in the era and platform which long videos such as movies and TV dramas cover the major proportion; As the commercial value of short video increases, the illegal dissemination of short video may increase. The probability is also more likely to be broken that short video upload persons are usually the owner of copyright.”6 With the change of this background, the duty of care and the responsibilities of short video platform should be reexamined. In this case, a normative dissemination order of short video needs to be established urgently. In this paper, short video industry is booming, and the high commercial value also obviously cause high risk, especially for the platform that specializes in short video sharing. It seems that reasonable basis assuming legal uploading of short video has been invalid for the defense of duty of care. As to whether it is applicable to the principle of safe harbor, it should be analyzed according to the applicable conditions of the principle of safe harbor.
1 Beijing Haidian District people’s Court: (2014)HM(Z) CZ No. 21068.
2 Shanghai No.1 Intermediate people’s Court: (2010)H1ZM5(Z)ZZD No.130
3 Beijing intellectual property Court: (2015) JZMZZ No.1262.
4 Beijing No.2 Intermediate people’s Court: (2011) 2ZMZZ No.20372.
5 Same with 3.
6 Li Chen: The Impact of Short Video Industry on the Possibility of Copyright Protection, Copyright in China, No. 4, 2017.
Analysis on the application of “safe harbor” principle in short video platform
China’s regulations on the principle of safe harbor are mainly embodied in the Regulations on Protection of Information Network Transmission Right, article 22 of which stipulates the conditions for the application of the principle of safe harbor by network service providers providing information storage space. When short video sharing platform involved in copyright infringement, it is often defended by the principle of safe harbor. Then, is the short video platform sure to meet the applicable conditions of the principle of safe harbor?
First, applicable body of the application is network service provider, which excludes the situation that some websites pretend to be We-Media and upload the media by cutting the film and television works in the name of the user, and then use the principle of safe harbor to evade responsibility. In this case, the video sharing platform is the direct executor of infringement, the provider of infringing content, not network service provider, does not apply to the principle of safe harbor. In the case that relevant short video content is uploaded by the user and the platform only provides information storage space, the short video sharing website belongs to network service provider and conforms to body requirements of safe haven principle.
Second, web service providers do not know and have no reasonable reason to know the infringement content uploaded by users. The Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law to Trial of Civil Dispute Cases of Infringement of Information Network Transmission Rights (The Provisions), the Article 12 provides that for the network service providers which actively select, edit and sort out subjects and contents of popular film and television works, according to specific circumstances of the case, the people’s court may decide that the network user should know that the network user infringes the right of information dissemination. Some short video platform websites use algorithms recommendation or other methods, to automatically recommend the next episode to the user after they watch the video, and place it in the first recommended position (as shown in the screenshot below), this behavior is an active arrangement of relevant film and television works, the recommended situation, constitute “ought to know”.
At the same time, whether the website is aware of the infringement status of relevant content or has reasonable reason to know, is related to whether the infringement is obvious and the website’s duty of care. If the content is a popular and high-profile TV drama or film, variety shows and other content, the platform should assume a higher duty of care. In addition, the platform should give the account who repeatedly uploads a large number of infringing content a higher care, or otherwise once infringement occurs, the platform may constitute “knowing” or “reasonable to know”.
Third, the economic benefits are not directly obtained from the works, performances and audio-visual products provided by the clients. According to The Provisions, the Article 12, paragraph 2, the network service provider makes money by placing advertisements on specific works, performances, audio and video recordings, or gains economic benefits from other specific links to the works, performances, and audio and video recordings transmitted by them, shall be regarded as direct economic benefits as stipulated in preceding paragraph. In practice, the platform inserts ads at the beginning and end of some short videos, and shares the benefits of short video with upload users. In the above case, short video platform has obtained economic benefits directly from corresponding short video, which can not be applied to the principle of safe harbor.
Finally, after receiving the notice, delete works, performances, audio and video recordings that the obligee believes to be infringing. As one of the prerequisites for the application of the principle of safe harbor, the deletion obligation is directly related to whether the accused infringement can be stopped in time, and also related to the extent of the damage suffered by the obligee. However, problem often encountered is that after receiving notification, the platform delays the implementation of the deletion obligation for various reasons, or after deleting the infringing content of the complained account, the other account releases the infringing content again and circularly. For the latter, because the obligee has already notified the infringement of relevant content, the platform does not pay high attention to it and allows the related infringement to happen again, it exists subjective fault. In this regard, the platform fails to perform deletion obligation.
In summary, under the increasingly serious problem of short video infringement, the era of legal presupposition for short video has become past, and the platform’s duty of care to short video should not be lower than that of long video. Whether the platform can defend based on the principle of safe harbor should be based on Regulations on Protection of Information Network Transmission Right, and specific problems should be analyzed concretely. In the case that short video content is uploaded by the platform and is camouflaged to be uploaded by We-media, the subjective malice of the platform is more intense than that of the general infringement.
As a content provider, the direct perpetrator of the infringement constitutes a direct infringement of the copyright of the relevant works, and should be regulated stricter; For the situation where the user uploads video content resulting in infringement, when the relevant video clip belongs to a hot broadcast drama, and the platform carries on the algorithm recommendation and fails to pay attention to the accounts with repeated, many infringements, and take appropriate measures, the platform may constitute “knowing” or “having reasonable grounds to know”. At this time, if the platform fails to pay reasonable attention or take measures to prevent infringement, it may be regarded as failing to fulfill reasonable duty of care; In addition, in the case of direct profit from the platform, it may still lead to failure to apply the principle of safe harbor. Finally, whether the platform timely and properly fulfill the deletion obligation after receiving the notification also directly affects the application of the principle of safe harbor.
Thinking about the duty of care and responsibility of short video platform
With the rapid development of short video industry, infringement is becoming more and more serious. In April 2017, Gu Amo, a movie short video online celebrity, was sued by three film companies for his “X minute to see the movie” series. In September 2017, the Budao shortvideo was charged with infringement for playing the video “PPAP” on the AAuto Quicker platform without authorization. In February 2018, 360 fast videos “moved” bilibili’s video content and caused the public’s attention, and there were numerous cases in which movies and TV shows were cut and uploaded to short video platforms for dissemination, leading to infringement disputes. What’s more, in “2018 Net Sword Action, short video is also listed as a key area of improvement. It can be seen that the premise that short video is presupposed to be legitimate has no longer exists; and, like the long video sharing platform, it plays an important role in short video industry chain and dissemination. The short video platform which distributes the short video content and profits directly or indirectly from it should also perform the corresponding duty of care and shoulder its own responsibility, the same as long video sharing platform.
First of all, in respect of responsibility, assume different responsibilities according to different status of the subject. Different short video sharing websites, or even the same video sharing website, may have dual identities as content providers and service providers, and their obligations under the law are not the same. As a content provider, the platform should examine content offered to the public, remove works that violate the rights of third parties; For the platform pretending to be a We-media, uploading infringing short video in the name of the user, or participating in production and editing of the short video, is undoubtedly the content provider. At this time, the obligation to examine the uploaded content should be assumed. When the relevant content constitutes infringement, the platform should bear direct tort liability.
When the short videos a re produced and uploaded by third parties, such as users, professional organizations, etc., the platform, as a service provider, does not perform the obligation of prior check, but it does not mean that it can be deliberately avoided. While allowing infringement to occur, the short video platform should perform the duty of care, that is, the short video platform should do its basic auditing attention when the short video is uploaded to the platform by others. For example, when short video is uploaded to backstage of the platform, the short video should be examined whether the title of the short video is the same as the title of others’ short video, whether the short video is related to movies or TV plays, and so on.
We should also pay more attention and vigilance and take preventive measures to those behaviors with obvious infringing signs, fields where infringement phenomena occur frequently and users who repeatedly carry out tort acts. Otherwise, if the content of relevant short video is infringed, the platform may assume indirect tort liability.
Second, use content identification technology to verify the uploaded video content and filter the infringing content. Referring to the experience of YouTube and using the CID (Content ID) content recognition system, compare the uploaded video with the data of copyright library to prevent the spread of infringing content. It is understood that technology can detect even short videos made from dozens of seconds of footage taken from films or short commercials that use others’ work as a musical background. Technology has more advantages than manual verification, and it can deal with short video infringement more effectively.
Third, for works that issue early warning by right holder and copyright office, take measures to prevent infringement. For some popular film and television, especially movie and television works that the right holder, the copyright bureau has sends the early warning letter, the short video platform should set up keyword blacklist, and lists the name of these films and TV plays to carry on the shielding treatment in an unified way. For example, in the iQIYI prosecuted toutiao.com’s infringement case, Haidian Court believed that the play had been issued early warning notice by National Copyright Administration. The defendant should pay more attention and prevent the user from infringing and uploading the content of the series by searching keywords, but the defendant had not fulfilled his reasonable duty of care and had not taken reasonable measures to prevent infringement. Part of the episodes involved were disseminated through its platform during hot sowing period, and reached a certain number. The defendant’s behavior has subjective fault, which constitutes a helping tort and should bear legal liability of tort.
Finally, take positive management measures for users who have repeatedly notified the content offline and uploaded the infringing content many times. The platform only performs the obligation of notified deletion and does not screen keywords, does not manage infringing users, and has little effect on infringement. The actual situation is that the obligee notifies many times, and after the platform removes it, the user will upload the infringing content again, quickly and in batches. If the platform has a laissez-faire attitude to the tortious behavior, it will inevitably encourage the tortfeasor’s arrogance and enlarge the loss of the obligee. Therefore, the platform should take measures to restrict the uploading behavior of the users who upload the infringing content repeatedly, or close their accounts directly, so as to avoid repeated infringement by the same user.
The introduction of the principle of safe harbor has powerfully eliminated the uncertainty of tort rules on the practical level, and especially provide protection for the network service providers who are not at fault subjectively. However, with the improvement of intellectual property protection consciousness in recent years, the trend of abusing the “principle of safe harbor” to avoid responsibility is also rising, and the field of short video also has no exception. Nowadays, the infringing phenomenon of short video frequently occurs. It is very important to make clear the applicable conditions of the principle of safe harbor, enter the “safe harbour” if it meet the conditions, or to take the tort liability according to law if the person fails to meet the conditions, so it is particularly important to regulate the infringing disorder in the field of short video.