Beijing iQIYI Science & Technology brought a lawsuit before Beijing Haidian District People’s Court in 2016, accusing Zhuhai Duowan Information Technology of unauthorized streaming of The Lost Tomb on Ipad’s YYHD software, which was developed and run by the company, based on the fact that iQIYI claimed to have exclusive online distribution rights for the program. The unauthorized streaming, as claimed, infringed the copyright of iQIYI. Furthermore, YYHD provides recorded broadcasting and cache services through screen capture function, encouraging and allowing the streamer to play the program on its software, which iQIY claimed constituted unfair competition.
In the second instance of the trial, held in 2018, the court did not support the infringement claim of the plaintiff for the reason that Zhuhai Duowan, as an online live streaming service operator, did not have any subjective fault beforehand, and had taken remedies soon after learning of possible infringement.
Legal regulation of online streaming. The most relevant rights to online streaming under the Copyright Law are the broadcasting right and online information distribution right. The conventional broadcasting right does not include online behaviour, and only applies to TV and radio programmes and similar media. However, the online information distribution right refers to the right of the copyright owner to present his or her works through wired or wireless methods, enabling the public to access the works at any time and any place an individual chooses. Apparently, this rule does not apply to online streaming since it’s real-time streaming instead of video-on-demand.
As a matter of fact, there is controversy as to the application of copyright on online streaming. Judicial views tend to regulate online streaming with miscellaneous provision of “other rights”. Besides, there are neither specific clauses in the Anti-Unfair Competition Law and Tort Law that explicitly regulate online streaming, causing application difficulties. In this case, the court of first instance declared that the rights of the involved program, due to online streaming, belong to “other rights enjoyed by the copyright owner”.
Duty of care of the platform. The judgment of the court of second instance in this case shows that the court distinguishes the definition of duty of care in public law and private law. In public law, as there is a need to create good social order and promote positive culture, the administrative rules provide that “cultural products shall not be comprised of any content that violates the national, ethnic and religious interests, and any pornographic content and content relating to gambling, and any other content that is prohibited by laws and regulations.” Thus, the platform has the censorship obligation in public law.
As to the duty in private law, the court in the second instance rules that “[Zhuhai] Duowan provides a live streaming platform, which makes it very difficult to regulate online behaviour beforehand, since online streaming is real-time and arbitrary. Given that the number of users is gigantic, apart from filtering pornographic content and content relating to gambling, and other content prohibited by laws through blacklisting keywords, it is impossible for Duowan to have instant and complete supervision of the users objectively.”
It implies that the general judicial view is that the duty of care on the live streaming platform at private law level should be proportional to its capabilities. In this case, if Duowan had included the keyword “The Lost Tomb” in the blacklist as soon as it received the complaint of iQIYI, and penalized the streamers, Duowan had followed the safe harbour principle and tried every possible technical measure to perform its duty of care.
To summarize, the duty of care on a streaming platform comprises the duty of censorship against content prohibited by laws and regulations at public law level, and the reasonable duty of care at private law level. Examples of the measures that can be taken include filtering relevant content through blacklisting keywords, reminding users explicitly of respecting others’ IP rights and legal obligations, establishing a complaint and misconduct report mechanism, adding new keywords to the blacklist in response to complaints about the videos, deleting the links and penalizing the streamers who violate the rules, etc.
Identifying the right infringing party. There are different types of streaming operation. First, there is an employment contract between the platform operator and the streamer, and the streamer provides streaming services in a professional capacity. Thus, the platform bears the liability for tort of any infringement occurring during streaming.
Second, there is co-operation between the platform operator and the streamer. The streamer shall be liable for any infringing content during streaming. Whether the platform is held jointly liable depends on the mode of co-operation, specifically, whether the platform is involved in the control of streaming content. If the platform has certain control over the content, it would be held jointly liable for tort with the streamer.
Third, the operator only provides the platform, which is the case with most streaming platforms, including YYHD in this case. Thus, the defendant is not directly involved in editing, organizing, modifying or recommending the content. In this mode of operation, the behaviour of the platform only constitutes contributory infringement, if there is infringing content in the streaming. The key is to determine whether the platform has performed the duty of care, specifically, whether the platform helps others conduct the infringement behaviour objectively, and whether it has subjective fault (intention or negligence). If the platform proves that it has performed reasonable duty of care, then it will be exempted from tort liability.
In conclusion, there is no solid law or regulation to govern live streaming, which has developed quickly based on the emergence of big data and internet technology. To lessen copyright disputes, the streaming platform should properly perform its duty of care through strengthening the monitoring and management of streamers and streaming content.
Li Wenting and Zhu Zhitong are partners at Hylands Law Firm
Hylands Law Firm
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