The difference between broadcasting right and information network communication right

First, the difference between information network communication right and broadcasting right

According to the legal definitions of "broadcasting right" and "information network communication right", "broadcasting right" refers to the right of the media to actively spread the work, and the audience (audience, audience) must passively accept the work according to the time or place arranged by the media; "Information network communication right" refers to the right that the media provides works, and the audience (audience, audience) can choose the time and place independently through the media and take the initiative to accept the works. This is the essential difference between "broadcasting right" and "information network communication right", which is not directly related to the media adopted.

Second, the main provisions of the right of information network communication

China's Copyright Law only stipulates three rights subjects of information network communication right: copyright owner, performer and producer of audio and video recordings. Publishers and broadcasters, as the subjects of traditional neighboring rights, have not been included. Then, can publishers and broadcasters enjoy the right of information network communication?

Publishers in the traditional sense include book publishers (publishers and companies) and newspaper publishers (newspapers and magazines). The key to judge whether they can enjoy the right of information network communication is to see what relationship exists between publishing in the sense of copyright law and online publishing, and whether the publisher's copyright can be extended to the information network. To constitute a publication in the traditional sense, two conditions must be met: 1 The author must agree to publish his works in the form of making copies; Related works must be copied in a certain number to "meet the reasonable needs of the public". According to the Interim Provisions on the Administration of Internet Publishing, "Internet publishing refers to the network communication behavior in which Internet information service providers select and edit works created by themselves or others, and publish them on the Internet or send them to clients through the Internet for the public to browse, read, use or download".

It can be seen that because of the similarity in nature, scholars call the act of uploading and spreading works on the Internet as online publishing, not because it is publishing. The identity of the neighboring right holder determines that the exercise of the neighboring right shall not infringe the copyright. . If the publisher is given the right of information network communication, the publisher will spread his works in the information network at will, which will inevitably infringe the copyright owner's right of information network communication. Therefore, publishers in the traditional sense cannot become the main body of information network communication rights.

Broadcasting institutions refer to wired and wireless radio stations and television stations. China's Copyright Law stipulates that broadcasters have the exclusive right to broadcast their own radio and television programs. However, with the continuous progress of information technology, the rapid development of broadband network after 2003 greatly improved the speed of network transmission, and broadband video services came into being. Great changes have taken place in the original broadcast mode. The public does not necessarily need to watch and listen to programs through TV or radio, but can find their favorite programs through the Internet. For example, Internet TV and mobile TV are the latest products of information technology.

Internet TV is a service that uses IP broadband network and integrates Internet, multimedia and communication technologies to provide users with various interactive services such as live TV, video on demand and surfing the Internet. Mobile TV belongs to the category of mobile video, which is a real-time interactive service for transmitting sound, images and data files in the case of point-to-point or point-to-multipoint transmission. . With the application of these new technologies, people can enjoy free programs without paying TV fees, so the huge investment of TV stations will not be protected accordingly. Obviously, the scope of the subject of information network communication right in China's Copyright Law is too narrow and should be extended to include broadcasting organizations.

Three. Regulations on the protection of information network communication rights

Article 1 These Regulations are formulated in accordance with the Copyright Law of People's Republic of China (PRC) (hereinafter referred to as the Copyright Law) for the purpose of protecting the information network communication rights of copyright owners, performers and producers of audio and video recordings (hereinafter referred to as copyright owners) and encouraging the creation and dissemination of works beneficial to the construction of socialist spiritual civilization and material civilization.

Article 2 The right of information network dissemination enjoyed by the obligee is protected by the Copyright Law and these Regulations. Unless otherwise provided by laws and administrative regulations, any organization or individual who provides other people's works, performances, audio and video products to the public through information networks shall obtain the permission of the right holder and pay remuneration.

Article 3 Works, performances and audio-visual products prohibited by law are not protected by these Regulations.

The obligee shall not violate the Constitution, laws and administrative regulations, and shall not harm the public interests.

Article 4 In order to protect the right of information network communication, the obligee may take technical measures.

No organization or individual may intentionally evade or destroy technical measures, manufacture, import or provide devices or components mainly used to evade or destroy technical measures to the public, or provide technical services for others to evade or destroy technical measures. However, unless it is stipulated by laws and administrative regulations that it can be avoided.

Article 5 Without the permission of the obligee, no organization or individual may engage in the following acts:

(1) Deliberately deleting or changing the electronic information on the rights management of works, performances and audio-visual products provided to the public through the information network, except that the deletion or change cannot be avoided due to technical reasons;

(2) Providing the public with works, performances, audio and video products that have been deleted or changed without the permission of the obligee, knowing or should have known.

Article 6. In any of the following circumstances, the copyright owner may not grant permission or pay remuneration to others' works through the information network:

(a) in order to introduce, comment on works or explain problems, appropriately quote published works in works provided to the public;

(2) inevitably copying or quoting published works in the works provided to the public in order to report current affairs news;

(three) to provide a small number of published works to a small number of teaching and scientific research personnel for school classroom teaching or scientific research;

(4) State organs provide published works to the public within a reasonable range for the purpose of performing official duties;

(5) Translating Chinese works published by China citizens, legal persons or other organizations into works written by ethnic minorities and providing them for the use of ethnic minorities in China;

(6) Providing published written works to the blind in a unique way that the blind can perceive, not for profit;

(seven) to provide the public with current affairs articles on political and economic issues that have been published on the information network;

(eight) to provide the public with speeches delivered at public meetings.

Article 7 Libraries, archives, memorial halls, museums, art galleries, etc. Without the permission of the copyright owner, legally published digital works in his collection and works that need to be reproduced in digital form for display or preservation according to law can be provided to his clients through the information network without paying him remuneration, but he may not directly or indirectly obtain economic benefits. Unless otherwise agreed by the parties.

The works referred to in the preceding paragraph that need to be reproduced in digital form by showing or saving the version shall be works that have been damaged or are on the verge of being damaged, lost or stolen, or whose storage format is outdated and cannot be purchased in the market or can only be purchased at a price significantly higher than the standard.

Article 8 In order to implement the nine-year compulsory education or the national education plan through the information network, courseware can be made from published works, short stories, musical works or fragments of separate artistic and photographic works without the permission of the copyright owner. Distance education institutions that make courseware or obtain courseware according to law should provide it to registered students through the information network, but they should pay remuneration to the copyright owner. [Page]

Article 9 For the purpose of poverty alleviation, China citizens, legal persons or other organizations publish works related to poverty alleviation, such as planting and breeding, disease prevention and treatment, disaster prevention and mitigation, and works that meet basic cultural needs. Internet service providers shall announce the works to be provided, the authors and the standards to be paid before providing them. Within 30 days from the date of announcement, if the copyright owner does not agree to provide it, the network service provider shall not provide its work; If the copyright owner has no objection within 30 days from the date of announcement, the network service provider may provide his works and pay remuneration to the copyright owner according to the standards of announcement. If the copyright owner refuses to provide the work after the Internet service provider provides it, the Internet service provider shall immediately delete the work of the copyright owner and pay the remuneration to the copyright owner during the period of providing the work according to the published standards.

No work provided in accordance with the provisions of the preceding paragraph may directly or indirectly obtain economic benefits.

Article 10 In accordance with the provisions of these Regulations, those who provide their works to the public through information networks without the permission of the copyright owner shall also abide by the following provisions:

(1) It is not allowed to provide the works previously declared by the author, except under the circumstances specified in Items 1 to 6 of Article 6 and Article 7 of these Regulations;

(2) indicate the name of the work and the name of the author (title);

(3) to pay remuneration in accordance with the provisions of these regulations;

(4) Take technical measures to prevent others other than the trustor as stipulated in Articles 7, 8 and 9 of these Regulations from obtaining the works of the copyright owner, and to prevent the copying behavior of the trustor as stipulated in Article 7 of these Regulations from causing substantial damage to the interests of the copyright owner;

(five) shall not infringe upon other rights enjoyed by the copyright owner according to law.

Eleventh through the information network to provide other people's performances, audio and video products, should comply with the provisions of this Ordinance sixth to tenth.

Article 12 Under any of the following circumstances, technical measures may be circumvented, but the technology, device or parts that evade technical measures shall not be provided to others, and other rights enjoyed by the obligee according to law shall not be infringed:

(1) Providing published works, performances and audio-visual products to a small number of teaching and scientific researchers through information networks, and such works, performances and audio-visual products can only be obtained through information networks;

(2) Providing a published written work to the blind through the information network in a unique way that the blind can perceive, which can only be obtained through the information network;

(3) State organs perform official duties in accordance with administrative and judicial procedures;

(4) Testing the security performance of computers and their systems or networks on information networks.

Thirteenth copyright administrative departments in order to investigate and deal with violations of the right to spread information on the Internet, they may require network service providers to provide information such as the name, contact information and network address of the service object suspected of infringement.

Article 14 Internet service providers that provide information storage space or search and link services, if the obligee thinks that the works, performances and audio-visual products involved in their services infringe on their right to spread information on the Internet or their right to manage electronic information has been deleted or changed, they may submit a written notice to the Internet service providers and ask them to delete the works, performances and audio-visual products or disconnect the links with the works, performances and audio-visual products. The notice shall contain the following contents:

(1) The name, contact information and address of the obligee;

(two) the name and network address of the infringing works, performances, audio and video products that require deletion or disconnection;

(3) Preliminary proof of infringement.

The obligee shall be responsible for the authenticity of the notice.

Article 15 After receiving the notice from the right holder, the network service provider shall immediately delete the works, performances and audio-visual products suspected of infringement, or disconnect the links with the works, performances and audio-visual products suspected of infringement, and at the same time forward the notice to the service object providing the works, performances and audio-visual products; If the network address of the service object is unknown and cannot be transferred, the contents of the notice shall be announced on the information network at the same time.

Article 16 After receiving the notice forwarded by the network service provider, if the client thinks that the works, performances and audio-visual products provided by him have not infringed the rights of others, he may submit a written explanation to the network service provider, requesting to restore the deleted works, performances and audio-visual products, or to restore the link with the disconnected works, performances and audio-visual products. The written explanation shall include the following contents:

(a) Name, contact information and address of the customer;

(two) the name and network address of the work, performance and audio-visual product that is required to be restored;

(3) Preliminary proof materials that do not constitute infringement.

The client shall be responsible for the authenticity of the written explanation. [Page]

Article 17 After receiving the written explanation from the client, the network service provider shall immediately restore the deleted works, performances and audio-visual products, or may restore the links with the disconnected works, performances and audio-visual products, and at the same time, hand over the written explanation from the client to the obligee. The obligee shall not notify the network service provider to delete the work, performance or audio-visual product, or disconnect the link with the work, performance or audio-visual product.

Eighteenth in violation of the provisions of this Ordinance, one of the following acts of infringement, according to the situation to bear the civil liability to stop the infringement, eliminate the impact, apologize and compensate for the losses; At the same time, if the public interest is harmed, the copyright administrative department may order it to stop the infringement and confiscate the illegal income. If the illegal business amount is more than 50,000 yuan, a fine of more than/kloc-0 and less than 5 times the illegal business amount may be imposed; If there is no illegal business amount or the illegal business amount is less than 50 thousand yuan, a fine of less than 250 thousand yuan may be imposed according to the seriousness of the case; If the circumstances are serious, the copyright administrative department may confiscate computers and other equipment mainly used to provide network services; If the case constitutes a crime, criminal responsibility shall be investigated according to law:

(1) Providing other people's works, performances, audio and video products to the public through the information network without authorization;

(2) Deliberately avoiding or destroying technical measures;

(3) Deliberately deleting or changing the electronic information on the rights management of works, performances and audio-visual products provided to the public through the information network, or providing the public with works, performances and audio-visual products that they know or should be deleted or changed through the information network without the permission of the obligee;

(4) Providing works, performances and audio-visual products to rural areas through information networks for poverty alleviation, or failing to pay remuneration according to published standards, or failing to delete them immediately after the obligee disagrees with the provision;

(5) Providing other people's works, performances and audio-visual products through the information network, failing to indicate the names of the works, performances and audio-visual products or the names of the authors, performers and producers of audio-visual products, failing to pay remuneration, failing to take technical measures to prevent others other than the client from obtaining other people's works, performances and audio-visual products in accordance with the provisions of these Regulations, or failing to prevent the copying behavior of the client from causing substantial damage to the obligee.

Nineteenth in violation of the provisions of this Ordinance, any of the following acts, shall be given a warning by the copyright administrative department, confiscation of illegal income, confiscation of devices or components mainly used to avoid or destroy technical measures; If the circumstances are serious, computers and other equipment mainly used to provide network services may be confiscated; If the illegal business amount is more than 50,000 yuan, a fine of more than/kloc-0 and less than 5 times the illegal business amount may be imposed; If there is no illegal business amount or the illegal business amount is less than 50 thousand yuan, a fine of less than 250 thousand yuan may be imposed according to the seriousness of the case; If the case constitutes a crime, criminal responsibility shall be investigated according to law:

(1) Intentionally manufacturing, importing or providing others with devices or components mainly used to evade or destroy technical measures, or intentionally providing technical services for others to evade or destroy technical measures;

(two) through the information network to provide other people's works, performances, audio-visual products, to obtain economic benefits;

(3) The names of works, performances and audio-visual products, the names of authors, performers and producers of audio-visual products and their remuneration standards have not been published before they are provided to rural poverty alleviation through information networks.

Article 20 A network service provider shall not be liable for compensation if it provides automatic network access service according to the instruction of the client, or provides automatic transmission service for works, performances and audio-visual products provided by the client and meets the following conditions:

(1) The disseminated works, performances and audio-visual products have not been selected or changed;

(two) to provide works, performances, audio and video products to the designated clients, to prevent others from obtaining them outside the designated clients.

Article 21 In order to improve network transmission efficiency, network service providers automatically store works, performances and audio-visual products obtained from other network service providers, and automatically provide them to customers according to technical arrangements. If the following conditions are met, they will not be liable for compensation:

(1) The automatically saved works, performances and audio-visual products have not been altered;

(2) It does not affect the original network service providers who provide works, performances and audio-visual products to master the situation that the clients obtain works, performances and audio-visual products;

(3) When the original network service provider modifies, deletes or blocks the work, performance or audio-visual product, it will automatically modify, delete or block it according to the technical arrangement.

Twenty-second network service providers provide information storage space for clients and provide works, performances and audio-visual products to the public through information networks, and they shall not be liable for compensation if they meet the following conditions:

(a) clearly provide information storage space for the service object, and disclose the name, contact person and network address of the network service provider;

(2) The works, performances and audio-visual products provided by the clients have not changed;

(3) Not knowing and having no reasonable reason to know that the works, performances and audio-visual products provided by the client are infringing;

(four) did not directly obtain economic benefits from the works, performances, audio-visual products provided by the client; [Page]

(five) after receiving the notice of the right holder, in accordance with the provisions of this Ordinance, delete the works, performances, audio and video products that the right holder thinks are infringing.

Twenty-third network service providers that provide search or link services to customers shall, after receiving the notice from the obligee, disconnect the links with infringing works, performances, audio and video products in accordance with the provisions of these Regulations, and shall not be liable for compensation; However, those who know or should know that the linked works, performances and audio-visual products are infringing shall bear the same tort liability.

Article 24 If a network service provider mistakenly deletes a work, performance or audio-visual product or disconnects the link with the work, performance or audio-visual product due to the notice of the right holder, thus causing losses to the customer, the right holder shall be liable for compensation.

Twenty-fifth network service providers refuse to provide or delay to provide information such as the name, contact information and network address of the service object suspected of infringement without justifiable reasons, and the copyright administrative department shall give a warning; If the circumstances are serious, computers and other equipment mainly used to provide network services shall be confiscated.

Article 26 The meanings of the following terms in these Regulations:

The right of information network communication refers to the right to provide works, performances or audio-visual products to the public by wired or wireless means, so that the public can obtain works, performances or audio-visual products at their selected time and place.

Technical measures refer to effective technologies, devices or components used to prevent or restrict browsing and appreciation of works, performances and audio-visual products without the permission of the obligee, or to provide works, performances and audio-visual products to the public through information networks.

The electronic information of rights management refers to the information of works and their authors, performances and performers, audio-visual products and their producers, the information of the owners of works, performances and audio-visual products, and the information of their conditions of use.