Combatting peer-to-peer file sharing of copyrighted material via anti-piracy laws: Issues,trends, and solutions

This article analyses potential end-user copyright violations associated with peer-to-peer (P2P) file sharing and the anti-piracy efforts currently underway in order to tackle them. This article discusses international developments in terms of trends, issues and solutions aimed at addressing peer-to-peer file sharing of copyrighted material. First, the article introduces P2P file sharing, its increasing significance in the growing digital media economy, and the legal issues surrounding this topic. Next, the article provides a comparative analysis of global efforts and trends in preventing digital piracy by analyzing relevant legislation, case law and practices in multiple jurisdictions, including the United States, United Kingdom, France, Sweden, and Japan. In addition, the article reviews Hong Kong's current case law and proposed legal reforms including an analysis of their deficiencies with respect to addressing P2P copyright infringement. The article concludes with an analysis of existing trends in preventive measures against copyright infringement through P2P file sharing and suggests directions on future legal and non-legal measures that Hong Kong as well as the international community can take in combating digital piracy and copyright infringement through peer-to-peer file sharing.     

著作权侵权损害赔偿要论

损害赔偿作为著作权侵权的救济方式之一在追究侵权人民事责任中发挥着重要作用,在各国著作权法中均有规定,而建立合理的著作权侵权损害赔偿制度的重要前提是损害赔偿计算方法的科学确立.我国<著作权法>第49条规定的三种著作权侵权损害赔偿计算方法有进一步完善之必要.侵犯著作权或者邻接权的,应当按照权利人的实际损失给予赔偿,侵权人因侵权行为所获额外利润应予返还;实际损失和侵权利润难以计算的,可以许可使用费为参照计算损害赔偿数额;法定赔偿制度的适用应受到一定限制.     

Black Hats and White Hats: Authorisation of Copyright Infringement in Australia and the United States

This article explores the concept of authorisation in relationto the possible liability of manufacturers and suppliers oftechnology if, and when, their technology is used by purchasersor other users to infringe copyright. Cases over the last 30years brought by copyright owners or holders against the manufacturersand suppliers of technology which has the potential to infringecopyright are examined, as well as the differing copyright lawsin Australia and the United States relating to the authorisationof copyright infringement. The article concludes with a discussionon the current legal approaches to authorisation and on possiblefuture approaches.     

论微博著作权及其保护

微博作为一种新型的网络信息沟通平台,在改变人们生活方式的同时,亦产生了法律上不可避免的问题：即微博的著作权问题.微博是否受保护虽有争议,但依据《著作权法》,只要其内容符合作品条件,就应予以保护.囿于微博自身特点所限,法律救济渠道不畅,导致微博著作权侵权案件频频发生.为净化微博使用环境,建议确立微博著作权侵权之认定标准、实行微博实名注册使用机制,通过完善相关法律法规争明确网络服务提供者的法律责任等制度采保护微博著作权,维护微博著作权人利益.     

Copyright infringement and potential technological prevention measures in UK universities

Sony Music v. Easyinternetcafe´ 1 Sony Music Entertainment (UK) Ltd, Sony Music Entertainment Inc., Polydor Limited, UMG Recordings Inc. and Virgin Records Limited (claimants) v. Easyinternatcafe Ltd [2003] EWHC 62 (Ch) in the High Court of Justice Chancery Division 28 January 2002. Case No: HC 02 C01798. View all notes has introduced a new facet to the debate concerning the copyright legality of peer-to-peer file transfer. The judgment and subsequent settlement has highlighted that companies offering services that are used to infringe copyright may be held to account in the UK courts. Liability may extend from the private to the public sector and the British Phonographic Industry (BPI)2 The action was supported by the BPI's international sister organization: The International Federation of the Phonographic Industry (IFPI). View all notes has reinforced this theme recently. In March 2003 every university in Britain received a letter pointing out the legal risks of universities acting as copyright infringement facilitators. By allowing students to download copyright material such as software, Mp3s and DVDs, universities and their vice-chancellors may face injunctions, damages, costs and potential criminal sanctions. This paper first, briefly reviews the history and literature concerning peer-to-peer file sharing and secondly provides a preliminary discussion of the heads of peer-to-peer copyright infringement liability with regard to UK universities. Although the law at present gives no clear precedent in regard to the university sector, the area is unlikely to remain static. It is feasible that student copyright infringement liability could be transferred to universities in the future if universities do not show due diligence when dealing with copyright infringement. Thirdly this paper outlines the technological and administrative actions that may be taken to satisfy the British Phonographic Industry (BPI) and other copyright holders that UK universities are showing due diligence in preventing student copyright infringement. It is proposed that the university sector will follow the Internet service providers (ISPs) and will begin to work with the collecting and enforcement societies to prevent copyright infringement, perhaps in a similar way to the operation of the Copyright Licensing Agency (CLA). This article puts forward two main reasons for this: First, to avoid the potential legal costs of a copyright infringement action and secondly as the majority of downloading of copyrighted Mp3s, DVDs and computer software does not constitute an academic pastime or fulfil any worthwhile university endorsed learning aims it should be actively discouraged.3 Certain limited peer-to-peer use may fulfil legitimate educational goals: This area in the UK is governed by the Copyright, Design and Patents Act of 1998 in sections 28–44. View all notes     

(Let's) playing by the rules: A choice of law rule for communication of copyright material from video games to the public,through Let's Plays

Several proposals have been made regarding a choice of law rule for ‘ubiquitous infringements’ (the unauthorised dissemination of copyright material online) but none have been implemented by national courts, which continue to struggle with the issue of what law determines whether ubiquitous infringements have occurred. This article explores fresh solutions to that issue, focusing on the scenario where copyright material from video games is communicated to the public, through its inclusion in Let's Plays (playthroughs of video games streamed from platforms like YouTube), or where such use of that material, under the terms of a license, is contemplated. In this scenario, the issue of infringement should be governed by the law of the place of the video game developer's incorporation, as a proxy for laws qualifying as the lex loci protectionis (law of the country where protection is sought (Fawcett & Torremans (2011)), abbreviated as the LLP). Where any party can prove specific differences between the law of the place of the developer's incorporation and a law qualifying as the LLP (called State A's law for ease of reference), in aspects essential for deciding whether infringement has occurred, the forum court must issue separate rulings as to whether (i) the claimant's copyrights under State A's laws have been infringed; and (ii) the claimant's copyrights under laws besides those of State A have been infringed. Courts should also adopt, as a mandatory rule of their domestic law, a rule precluding de facto infringements of copyrights in video games and/or their constituent elements from giving rise to liability for infringement.     

网络服务商共同侵权制度之重塑

网络服务商共同侵权(间接侵权)制度是影响网络版权秩序最重要的法律规则。在这一领域,美国式的安全港规则居于统治地位。十几年来的网络版权实践表明,安全港规则不合理地降低了网络服务商的注意义务,损害了网络服务商预防第三方侵权的积极性,使得网络盗版泛滥。为了克服安全港规则的制度缺陷,美国和中国的法院被迫限制适用红旗标准或策略性地适用引诱侵权和替代责任规则,结果过度扭曲了网络间接侵权规则。为了改变这一现状,中国在修改著作权法时应当果断地放弃美国式的安全港规则,恢复侵权法一般规则的适用,强化网络服务商的注意义务。     

浅谈网络著作权侵权案件的地域管辖

网络在带给人们方便的同时也带来了一系列的法律问题,网络著作权侵权案件地域管辖的确定便是其中之一。网络所建构的虚拟空间突破了实体地域与国界的限制,当网络著作权侵权行为发生时,以地域为基础的传统管辖权理论与规定似乎无法圆满解决网络侵权案件管辖权争议,因此当侵权行为人利用网络实施侵权行为引发诉讼时,判断侵权案件地域管辖即成为一个现实的问题。本文分析了网络著作权侵权的一般性问题、我国现行法律关于网络著作权侵权案件地域管辖相关的规定及网络著作权侵权案件地域管辖确定的标准。     

The failure of the Russian global license proposal and the future of alternative remuneration systems

As rights holders, courts, and policy makers worldwide struggle with the question of copyright infringement and the potential liability of internet service providers (ISPs) worldwide, Russia developed – and subsequently abandoned – a proposal for the creation of a global license to be imposed on ISPs which would allow for rights holders to be compensated for copyright-infringing activities carried out through those ISPs.Russia is not the first jurisdiction to look at a global license as solution to the wide spread of copyright infringements online. By analysing the Russian proposal for a global license, this article addresses the sustainability of such a model on a wider scale by analysing the legal implications this may cause. In this context, this article will address the Russian proposal's legislative history before moving into a substantive discussion about the synergies between legal justifications and merits of a global license.     

开发数字电视机顶盒共享器的知识产权问题解析——兼谈数字电视业务的反垄断法规制

数字电视机顶盒是保护视听节目内容与信号的一种版权技术措施,但＂一机一盒＂技术措施的合法性应受反垄断法的审查。开发节约资费型共享器可适用著作权保护的＂个人使用＂例外;开发独立选台型共享器及用于酒店等经营性场所的共享器将构成版权侵权。对机顶盒内部的半导体及程序进行反向工程的行为可能会侵犯机顶盒原始创新权利人的知识产权。以机顶盒业务为例,反垄断法的功能与价值在知识产权领域应受到重视。     

Technological Protections in Copyright Law: Is More Legal Protection Needed?

Providing legal protection against the 'hacking' of technological locks used to protect copyrighted works recently has been the subject of an international treaty (the World Intellectual Property Organization Copyright Treaty), a European Community Directive (the Information Society Directive) and major copyright legislation in the USA (the Digital Millennium Copyright Act). By making hacking illegal, these legal protections fortify the technological protections employed by copyright owners to reduce infringement of their works. While copyright owners may use technological protections to compensate for the increased infringement potential in a digital world, technological protections can also be used to obtain far greater protection than the law would otherwise grant the copyright owner. In this article, Professor Loren argues that attention needs to be shifted from providing legal protection for technological protections, to providing legal protections against the overzealous use of these technological protections by content providers. She argues that laws should be enacted, and perhaps even treaties should be signed, that would prohibit the use of technological protections to impermissibly invade certain use rights recognized by a country's copyright laws.     

欧盟版权指令第15条之评价与反思:以超链接规制为视角

欧盟现有法律对于超链接的侵权管制过于严格,这种做法没有平衡公共利益和著作权人的利益,造成了对著作权的过度保护.虽然最终通过的《数字化单一市场著作权指令》第15条规定新闻出版媒体的邻接权规则不适用于超链接行为,但是这并未从根本上解决对超链接的著作权规制过严问题.为了促进互联网上信息的自由流通以及用户的表达自由,法官应当对超链接提供者与网络平台的侵权责任进行区分,并且仅在超链接导致侵权结果时对链接提供者进行追责.     

Holding Back the Tide— a Review of Recent Developments in Copyright Law in the United Kingdom

This article surveys recent developments in UK copyright law. It sets these developments in the context of broader trends in copyright law and policy. Significant decisions concerning subsistence of copyright, authorship, infringement, defences, remedies and collective licensing are analysed. The author notes that copyright, and other intellectual property rights, have been given extra force as a result of recent legislative developments. He argues that, against this background, it is possible to discern increasing judicial concern to ensure that such an expansion in monopoly power does not operate against the public interest.     

著作权保护的现代发展:从侵权限止到交易励进

现代著作权法对著作权的保护,从限制或禁止侵权行为的防御性保护,发展到鼓励和促进著作权交易的积极性保护,源于知识经济与互联网时代"限禁"著作权侵权行为但难"止"的现实.现代著作权法励进著作权人最大限度地利用著作权实现权益.著作权保护期的限制、著作邻接权概念的创设、限制著作权的合理使用、法定许可与强制许可制度,及至著作权出资的投资形式,潜藏其中的是著作权人权益与公共利益之间的动态均衡.     

从“百度文库案”窥侵犯著作权罪的立法纠结——兼评2011年《关于办理侵犯知识产权刑事案件适用法律若干问题的意见》

#"$$ 年《若干意见》进一步明确了侵犯著作权罪的定罪量刑标准，但《若干意见》在对侵犯著作权罪的解释中仍然存在着主客观方面的纠结，立法层面的规范纠结必将使得立法意图无法实现。解开纠结的路径应为：在主观方面，提高网络信息服务提供者的审查义务，即只要网络信息服务提供者在他人上传侵权作品的网站上直接或者间接收取费用，就推定其明知他人上传的作品侵权并利用；在客观方面，将“利用他人上传的侵权作品”涵盖在“发行”的外延中。     

Safe harbor provisions of Chinese law: How clear are search engines from liability?

It seemed well-settled that Chinese law provided owners of search engines with safe harbor against unreasonable interference from copyright holders. But the judgment of IFPI v. Yahoo! shook this belief. This controversial judgment is related to the rather convoluted applicable legal rules, with joint infringement rules interweaved with the safe harbor provisions. To fully expose the scope of search engine provider's liability and the legal issues of the Yahoo! China ruling in particular, this paper examines the Chinese provisions for joint infringement and liability for search engines, discusses all the Chinese “safe harbor” provisions, those in the Regulation RCIN, the Judiciary Interpretation for Digital Copyright and the Administrative Measures for Digital Copyright. Following this discussion, suggested errors in legal application in the Yahoo! China case are analyzed and a suggested right approach is argued.     

Documenting Fair Use: Has the Statement of Best Practices Loosened the Fair Use Reins for Documentary Filmmakers?

The United States Copyright Act allows for fair use of copyrighted material under certain circumstances, but federal courts have been inconsistent in rulings on copyright infringement cases in which documentary filmmakers claim fair use. This can be problematic for documentarians, who often use copyrighted materials. The 2005 “Documentary Filmmakers’ Statement of Best Practices in Fair Use” addressed this inconsistency by providing guidelines for filmmakers. This article analyzes relevant federal cases before and after the statement in which a documentary filmmaker was sued under the Copyright Act for infringement and in which a court addressed the issue of whether the use was fair. A case analysis shows that federal rulings have become slightly more accommodating toward the use of copyrighted material in documentaries and the use of copyrighted video in general since the statement was introduced. The statement's relevance to fair use case law is also examined.     

An analysis of the fundamental tensions between copyright and social media: the legal implications of sharing images on Instagram

ABSTRACT

Copyright is inherently intertwined with the development of technology and none more so than the advent of the Internet and sharing technologies. More recently, social media platforms have become the latest challenge for copyright law and policy. This article builds on the literature that recognises the underlying conflict between copyright and social networking sites (SNSs); namely that the basic implication of copyright is the restriction of copying, whereas the ethos of social networking is the promotion of sharing. In particular, this article focuses on the disparity between the restricted acts of copying and communication to the public under copyright law and the encouragement of sharing on SNS Instagram. In doing so, it contextualises the debate surrounding copyright and social media and provides an understanding of the legal implications of using Instagram. As such this paper analyses (1) the infringement of copyright protected work on Instagram, and (2) the user-agreement and licensing of copyright material on Instagram. This study concludes that the disparity between the principles of copyright and social media lead to confusion and vulnerability of users. Therefore, it is suggested that Instagram should better inform its users of the implications of sharing third-party content as well as the terms of its user agreement. This could be done by implementing a copyright strategy, which includes a notice and takedown system as well as investing in producing educational content for users. Perhaps SNSs, such as Instagram might be more motivated to take steps to recognise intellectual property rights if they were considered Internet Services Provides such as YouTube.     

论版权法之间接侵权责任——以《网络信息传播权条例》为中心

我国新近生效的《网络信息权保护条例》建立了间接侵权制度,它与直接侵权一起构成了版权侵权制度,具有革命性的影响。但《条例》尚无法完全满足数字技术所带来的挑战,这主要集中在法律没有为“双重用途技术”提供普遍化的间接侵权标准。因此,根据我国经济发展之现状,在版权法公共政策目标的指导下,建立以过错为归责原则、以类型化立法为基础的间接侵权制度是具有合理性的。