Good morning, dear colleagues and friends. It is a great honor for me to come to the lawyer development forum and share my thoughts on intellectual property issues. Yesterday, I attended the founding meeting of the China Intellectual Property Trial Research Professional Committee held by the Supreme People's Court in Chongqing. I called this meeting the most perfect gathering between the academic and judicial circles in the field of intellectual property, because Dean Qian Gang and I As the director of the professional committee respectively, I think this is also an excellent opportunity for us. When I come to this meeting today, I want to cooperate with all my lawyer friends again. The topic of my lecture today is "Copyright Industry and Copyright Protection Issues in the Internet Age." It can be said that we have entered an innovative era with knowledge revolution as its basic feature. The technical characteristics of this era can be described in two sentences. It is an era of network technology and an era of genetic technology. Due to the relationship between time and , I can only talk about network technology.

Today, the Internet can be said to have entered our lives and is changing the lifestyle of each of us. While we enjoy the convenience that Internet technology brings to us, we also have to endure this The pain technology brings us. To paraphrase Dickens, it was the best of times and the worst of times. It is said to be the best of times. We do have to admit that network technology has brought us great convenience in information transmission and acquisition, and the network itself is an industry. It has become a tool for the development of the knowledge economy in the 21st century. According to me, According to the information we have, by the first half of this year, the number of Internet users in China has reached 250 million. What is this concept? Compared with the same period last year, there was a net increase of 91 million people in the first half of this year, which is equivalent to one and a half of Germany's total population. The net increase was 56%. The second data is that as of the first half of this year, China's Internet business scale has reached 14.6 billion, while in 2001, the Internet's business scale was only 30 million. We are now seeing that the subprime mortgage crisis that occurred in the United States last year and the financial crisis this year may become an economic crisis that shakes the world. However, we can see that with the support of 250 million Internet users in China, the development of the Internet industry It will be in the ascendant and have good momentum. So I say this is the best era. But we have to admit that this is the fastest era, because Internet technology has broken the traditional interest pattern between copyright owners, disseminators and users. In this Internet field, I think the traditional film industry, The audio industry and publishing industry have a fierce conflict of interest with the network technology industry. We have seen that in terms of online business, network technologies based on online video, online music, online news, online shopping, BBS, blogs, and videos all involve copyright issues.

Therefore, as a lawyer, what you should be most concerned about is copyright disputes. Internet copyright disputes can be said to be increasing sharply now. According to statistics from the Beijing High Court in the first half of 2007, there were more than 1,700 copyright cases accepted that year, 75% of which involved Internet copyright disputes. Therefore, in a vivid word, the number of copyright cases arising in the Internet era Such legal disputes are the most worrying for film and television companies, the most troublesome for Internet companies, and the happiest for copyright companies. If a few years ago, Internet copyright disputes were still one--this kind of disputes were becoming more and more common. Now I think it is a storm that is not going to stop, so Internet copyright disputes are inevitable. In my opinion, I would like to talk about the three most important online copyright issues.

First, let me talk about the legal issues of search engine service providers. Search engines can be said to be the most common problem in the application of network technology and its business models. Search engines involve music search, video search, image search, book search, and keyword search. In addition to keyword search, several other searches They all involve copyright issues, and keyword searches involve copyright as well as trademark and anti-unfairness issues. Where is the problem now? What legal responsibilities do search engine service providers bear when providing search and connection services to users? There is now a regulation specifically dealing with safe harbor clauses. The issue regarding this safe harbor clause is a matter of opinion and wisdom. For example, Baidu won the Baidu case in 2005, and Xunlei lost the Xunlei case in 2008. They have completely different effects, but they both involve legal issues borne by search engine service providers. I think the key issue is how to understand the safe harbor clause.

I think there are two issues worthy of consideration by our lawyers. Is the subjective fault of the first search engine service provider based on direct and specific infringements, or is it determined based on the technology itself? . I thought what was the responsibility of the search engine service provider under the safe harbor clause? When he receives the rights notice from the copyright owner, he should disconnect the direct link between your search engine technology and the copyrighted work. In other words, you should disconnect the link and stop this infringement. In this case, he does not need to bear liability for compensation, but if there is a link between your search engine technology and the copyrighted work, you may have to bear the same infringement liability. What's the problem? Should we judge his subjective fault based on such a direct and specific infringement act or based on the technology itself? I think my point is that the infringement liability of search engine service providers cannot be directly determined based on the search engine technology itself, and that they are subjectively at fault. This is because in the high-tech field, there has always been a principle of technology neutrality. The U.S. courts also call it the principle of reasoning. However, 30 years ago, when Japanese reasoning companies invented camera and video technology, film and music companies also provided infringing technologies. The reasoning companies had to pay huge compensation. The U.S. federal The court held that the video technology itself does not include the purpose of illegal use. Therefore, based on the principle of neutrality, this technology can be used for legal purposes or illegal purposes, and it is not a judgment of value. In this case, it is determined that the provider and user of this technology does not constitute infringement. Therefore, in this case, we cannot determine that the search engine service provider is at fault based on the technology itself. This is my first point.

The second point of view is how to determine that the subjectivity of the search engine service provider is knowing but cognition. This knowing is a comparative judgment, and knowing is a kind of actual cognition. When the rights holder comrades the search engine service When the service provider claims the rights, if the service provider still connects its search engine to the copyrighted works without making corrections, then the reform will know that the problem lies in cognition. What is the state of cognition? I think cognition is a kind of presumptive cognition, which requires that the service provider cannot turn a blind eye to obvious infringements. It has the obligation to identify and monitor it. Therefore, some judges, including some lawyers, advocate the introduction of the American red flag principle. What does this red flag principle mean? Red flags are very eye-catching and easy to identify. As an engine service provider, you must see possible infringements just like seeing bright red flags. You cannot turn a blind eye and should assume the obligation to monitor, delete, and exclude them. I think search engine service providers should pay as much attention to this aspect as possible when providing related services in the Internet era. This is the first question I talk about.

Second question, let me talk about the responsibility of digital libraries. Digital libraries are also a business operation model that is referenced in the Internet era, and this business operation model can be said to be in the ascendant and has good momentum. However, the resulting copyright disputes are also one after another. The earliest lawsuit should be pursued as early as 2004 by a British politics professor He sued the digital company for illegally putting his works on the digital library for others to use for a fee. Last year, hundreds of scholars sued Chaoxing, and this year it was even more serious. There were two very influential lawsuits this year. In one case, 148 doctors and masters sued Wanfang, and then more than 100 masters sued Wanfang. and Dr. He sued the China Academic Journal Network because these two digital book companies digitized Chinese master's and doctoral theses without permission, thus bringing about the digital library business model, which is a copyright law violation. Fair use or infringement use, what kind of legal liability should digital libraries bear? Our country's digital network communication regulations have strict restrictions on the reasonable use of digital libraries. It must meet three conditions. The first is that the scope is limited, which means that the books that can be used digitally are limited to the library's collection. Books are limited in scope. Second, there are limitations on purpose. Your use must be necessary for the preservation and display of these versions. Third, there are restrictions on use. It is limited to non-profit use. However, we have seen that the current business operation model of digital libraries, except for a few with public purposes, most are for profit. That is to say A commercial operating model. It saves books digitally or scans them digitally, and then files them into a digital library for netizens to pay for their use.

From our point of view, this seems very - we see that it is fair use, but our laws do not provide for such legal permission to use, so the digital library can only use it through authorization. Licensing is a massive license and difficult to do. This resulted in the above-mentioned series of lawsuits. The Kugou that comes to mind here also has a digital library model, but its fate is completely different. Kugou has a book search business model. It also digitally scans books, then creates documents, and attributes them to Kugou. The book database is for users to search. For the retrieved books, users can read 6 pages of content for free. After reading for free, they can directly go to the supplier to purchase paper books through the book sales link provided by Kugou. This is It is a book search business model of Kugou. Kugou started operating in China in 2007, and it is still safe and sound. However, the situation in the United States is not good. Three years ago in the United States, the Writers Guild of America and the American Publishers Association sued Kugou to court and fought. After a three-year lawsuit, a settlement was reached in the second half of this year. What is the result of the settlement now? Kugou must pay US$125 million to the Writers Association, Publishers Association and related associations, and at the same time reach a new agreement. Kugou will have the right to continue to digitize these books to satisfy user search links. Due to book search 67% of the sales, advertising and other related income generated belongs to the original copyright owner, and 33% is enjoyed by Kugou. The business model of Kugou and the three disputes I talked about above have caused us to think about it, and it involves at least three issues.

The first question is that I think the scope of reasonable use of public welfare digital libraries should be expanded and the restrictions should not be too strict. This is a problem.

The second question is that future amendments to the copyright law for general digital libraries can consider drafting relevant provisions for legal use.

The third issue should be considered in the digital environment, that is, the authorization of written works under network conditions. A collective management organization for written works can be established to solve the issue of authorization of massive works. These are all things that future amendments to the Copyright Law will address.

Let’s talk about the last issue, the legality of technical protection measures for copyrighted works. This issue is the black screen issue in Microsoft that everyone is interested in. Before I came here, I saw a joke circulating on the Internet. Microsoft's black screen will black out for you once an hour. Once it blacks out, you can take a short break. What's the advantage? Now my head is no longer dizzy, my eyesight is no longer blurry, I can walk more vigorously, my body feels great, and everything I eat tastes good. It is said that Microsoft is really humane and sincerely takes care of your body. This is a dark humor. In fact, netizens are now filled with indignation over Microsoft's black screen measures. We have also noticed that some lawyers in Beijing are eager to try. Our users want to sue Microsoft. Some say that the black screen measures constitute infringement, and some say that it harms our information security. , and some say it has constituted antitrust. Of course, I think you have more experience than I do in how lawyers conduct litigation. Here, as a scholar, I would like to share some views and thoughts on how lawyers conduct litigation.

First of all, let me talk about the copyright issue. Copyright litigation definitely involves two major issues. The first is the subject of the lawsuit, and the second is the punctuation issue of the lawsuit, which is the issue of technical measures. The subject of litigation determines whether the client you represent, that is, the user of the software, can become the subject of litigation. I think that users of pirated software do not constitute Microsoft users in the legal sense. I am afraid that my view is different from that of many people, because it is very easy to condemn Microsoft with righteous indignation, but as a lawyer representing this lawsuit, I think It requires more rational thinking. I think the subject of the lawsuit must be the subject of power. As far as this case is concerned, it is limited to users of genuine software. In other words, users of pirated software are not Microsoft users in the legal sense. I think there are two situations for users of pirated software:

The first one is that the user does not know and has no There should be reasonable grounds to know that the software being used is pirated software. Generally speaking, this type of user is not liable for compensation because he does not know and should not know. He thought he was buying genuine software, but ended up buying pirated software. Subjectively, he didn't have too many faults. In this case, he does not need to bear liability for compensation, but it cannot be said that such users have no responsibility.

According to the provisions of the Copyright Law, in accordance with the relevant provisions of the Computer Protection Regulations and Information Network Copyright, such users should bear the responsibility to stop infringement and destroy illegal copies. According to statistics from Microsoft, about 20% of users in China who use pirated software fall into this category. To this end, Microsoft has taken an emergency measure to protect their legitimate rights and interests. If he stops using this pirated software, he can continue to use it. Bring a legal and valid ticket to Microsoft's customer department to replace a set of genuine software. This is the first type of user.

The second type is that the user knows that the software he is using is pirated software. It should be said that this type of user definitely does not constitute a user in the legal sense. If he uses pirated software knowingly, I think he is a kind of Infringement, and this infringement consists of two infringements. First, he illegally purchased and used pirated software, and enjoyed the related services of providing this software through this unfair channel. Therefore, I think the so-called black screen, in a term, in Microsoft terms, is actually a genuine value-added verification measure. You can accept this verification. Whether it is genuine verification, you can accept this. Verification, you don’t have to accept such a verification. If you accept such a verification and use pirated software, he will give you a warning measure. Therefore, I think the users of verification should be genuine WindowsXP users, and only they can become legal users. Of course, this kind of genuine software includes the 20% I just mentioned. The genuine software I bought was actually pirated software. He didn't know and shouldn't know it. Knowing that it was pirated software and deliberately using it was not legal. of users.

What I am talking about above is the issue of the subject of litigation.

The second question, let me talk about the subject of the lawsuit, is the legality of black screen technical measures. Software technical measures refer to the use of encryption technology to prevent decryption behavior and effective technical means and methods without permission and legal permission. Simply put, rights holders require a database for their copyrighted works and adopt encryption protection. method, while the infringer, or the author of the pirated software, adopts the method of decryption, or the method of circumventing technical measures. The two views are tit for tat. Generally speaking, technical protection measures include technical measures to control access to works, technical measures to control the use of works, technical measures to control the dissemination of works, and technical measures to identify unauthorized works. Here I want to say that the technical measures themselves It is not a right of the copyright owner, but a means of safeguarding his own rights and a means of protecting his rights. I would like to explain here that some time ago many people accused Microsoft of being a private remedy, which is illegal. In fact, I think that taking technical measures for protection has been adopted as a means of private relief by international conventions. It is recognized by the relevant laws of China, so this technical measure has legal significance and a legal basis.

Next, we have to see whether this technical measure is legal or illegal. There are two major doubts. Some people think that this kind of technical measures can only be used in the front and cannot be protected (used) in the back. In other words, if you are listening to the use of genuine software, you can use technical measures for encryption protection, but cannot take supplementary measures after selling the software. technical measures. I think that technical measures can be taken beforehand or supplemented afterward. The key is that the nature of such measures should be protective and warning, rather than offensive and destructive. Some people put the black screen measures I think it is inappropriate to compare it with the technical measures taken by Jiangning Company in 2000. What did Jiangning Company's anti-virus software ultimately cause? It causes crashes and the disappearance of data. It is destructive. I will stop here on the copyright issue. There are two other issues. I will briefly summarize my views here. I think Microsoft's black screen measures cause us to think not only about copyright issues, but also about in-depth thinking. One is information security. question. As the largest software provider in the world, Microsoft is indeed taking advantage of its market capital positioning, which is harmful or has the potential to harm our information security.

Last month I attended a high-level forum on software and integrated circuits in Beijing and met Academician Ni Guangnan, who specializes in software. He said that national information involves national security, and corporate information involves corporate security. , personal information involves personal security, we must open our technical software to ensure the security of our information.

The second question involves monopoly operations, that is, anti-monopoly laws. It can now be said that Microsoft is suspected of being a monopoly and has formed an international political consciousness. In April 2004, some intellectuals in Los Angeles, San Francisco, California, sued Microsoft, accusing it of developing personal Windows software. constitute a monopoly. In December of the same year, the European Court of Justice ordered Microsoft to implement the relevant decisions of the European Commission. The European Commission determined that Microsoft constituted a monopoly. It is necessary to change the current business operation model, change the current bundling sales practice, and at the same time open up to some competitors. I just want to talk about my own point of view on this question. It is just for everyone’s reference. The time is up. I’m sorry. Thank you!