Targeting "Extortion-like"Copyright Protection and Maintaining Order in the Copyright Market

Elena Wang, China IP,[Copyright]

On April 10, humanity's first-ever photos of a black hole were released through six simultaneous global press conferences, arousing public attention. Several hours later, Chinese stock image site Visual China Group (VCG) claimed copyright of these images, which caused great disputes. The Central Communist Youth League of China criticized VCG for claiming copyright of China's national flag and national emblem, and many renowned enterprises questioned that their copyright of relevant pictures was infringed, which triggered further controversy. The company was later summoned by the local internet regulator in Tianjin to discuss a thorough overhaul of its website.
 
On April 11, VCG website was closed because of copyright trading. Before that, this company used to take copyright marketing as its core business; many we-media as well as enterprises received lawyer's letters from VCG for suspected image copyright infringement and were claimed large amounts of compensation sometimes as high as tens of thousands Yuan. Such a behavior has not only infringed legitimate rights and interests of original authors, but also abused copyrights. Many we-media and enterprises, due to their lack of IPR awareness, have suffered from such "extortion-like" copyright protection.
 
Improve regulatory mechanisms to prevent the abuse of copyright protection
Nowadays, the Internet has become people's second living space. According to statistics from China Internet Network Information Center (CINIC), until June 2018, the number of netizens in China has increased by 29.68 million, an increase of 3.8% in half a year; by then, the total number of netizens reached 802 million, and the Internet popularization rate was 57.7%.
 
The Internet and other digital technologies are rapidly integrating with various economic and social sectors, and thus are important engines promoting consumption upgrading, economic and social transformation and the fostering of new national competitive advantages. Meanwhile, the fast development of Internet economy gives rise to many problems in new industries and practices of the information society. The emergence of creative economy strengthens the awareness of copyright protection in society; but while safeguarding copyright, we must prevent copyright abuse, and in particular, prevent copyright from being a tool for making improper profits.
 
The hot debate on the copyright issue of "black hole images" has made image copyright part of the special campaign "Jianwang 2019", which will be launched by the National Copyright Administration of China as this year's top priority. On one hand, supervision will be focused on excessive illegal use of pictures whose copyright belongs to others. Enterprises with such problems or infringement complaints may be summoned by regulatory bodies, imposed with administrative penalty or even transferred to a public security authority. On the other hand, enterprises that engage in "extortion-like" rights protection will also be supervised. Those who violate the law of "carrying out collective administration of copyright without permission" under the Regulation on the Collective Administration of Copyright may be held administratively or criminally accountable, according to the seriousness of the case. Given such serious results, risky enterprises should immediately carry out selfregulation and self-correction to pay more attention to the compliance management of image copyright.
 
Lin Guanghai, deputy director of the Third Civil Division of the Supreme People's Court, said on the IPR Publicity Week press conference, that IPR should be strictly protected; but illegal behaviors like making profits by claiming fake copyrights of photos should not be protected, and should be punished according to relevant law if such behaviors were serious; watermark should not be the only evidence of copyright; image copyrights that should be protected will be resolutely protected and vice versa. Given China's greater efforts in strengthening IPR protection, legitimate rights protection should not become an excuse for rights abuse.
 
EU revising copyright laws to strengthen regulation of online infringement 
Image copyright issue on the Internet platform not only attracts attention in China; the EU is also introducing relevant policies and laws to strengthen regulation of online infringement. On March 26, the European Parliament adopted the Directive on Copyright in the Digital Single Market in plenary by 348 votes in favor and 274 against. Member states will be required to put in place laws to support the Directive in 24 months. According to the Directive, all online platforms must prevent copyright infringements of content uploaded by users, should they not have obtained a license. This is a heavy blow to Internet companies, as this means that platforms need to pay more to media when using pictures and most likely have to install filtering technologies. Many Internet giants are against these new rules. For example, Kent Walker, senior vice president for global affairs at Google, once said that online platforms may unnecessarily prevent content from being uploaded to reduce legal risks.
 
Also on March 26, the Book Launch and Conference "Paradigms of Internet Regulation in the European Union and China", hosted by the School of Law of Renmin University of China and the Faculty of Law of the University of Munich, took place at Renmin University of China. This conference was joined by experts and scholars from Renmin University of China, University of Munich, Max Planck Institute for Innovation and Competition, Institute of Law of Chinese Academy of Social Sciences and Peking University, practitioners from Internet industry and representatives from relevant regulators. After the conference, journalists from China IP interviewed Dr. Michael Mueller from the Faculty of Law of the University of Munich, and Mr. Heiko Richter, junior research fellow at the Max Planck Institute for Innovation and Competition, and discussed with them the copyright issue of images used by Internet platforms and uploaded by users.
 
According to Heiko Richter, new rules of the European Union affect different markets. Among others, the reform targets press publications concerning online uses as well as online content-sharing services, which could also cover picture collection. On one hand, Internet companies like Google and YouTube perceive these rules as too strict as they limit their operations; on the other hand, these rules aim to strike a balance between different copyright stakeholders. Internet platforms’ use of user content brings them profits, which implies that both platforms and users should be responsible for examining the legitimacy of images. In the past, Internet platforms were only obliged to remove infringing content when a rights holder asked them to do so. However, with the fast development of the Internet, such a model has caused severe copyright problems.
 
According to Dr.Michael Mueller, in the "Fourth Industrial Revolution", technological development has been outpacing regulation. Ten years ago, no-one could have predicted the emergence of Blockchain and the trend of Artificial Intelligence (AI). This leads to unforeseen challenges for the regulatory framework. Moreover, while technological development is a global phenomenon, law-making is often confined to the borders of the nation state or regional cooperation. The Chinese debate on the copyright protection of stock images vividly exemplifies the challenges law faces in the digital era: The fast development of Internet technologies and the spread of big data enable everyone—including stock image providers—to search for pictures all across the Internet. However, the mere fact that someone retrieves a picture online cannot grant them copyright ownerships. Rather, it is a regulatory challenge to defend the rights of the creator. The fact that copyright legislation still takes place mainly on the national level makes the international enforcement of ownership rights even more difficult.
 
Concerted efforts to maintain order in the copyright market
In recent years, the number of cases concerning image copyright has been on the rise. To deal with this, relevant authorities are constantly strengthening regulation and management of the copyright market; the copyright awareness of enterprises and users is enhancing. But falsely claiming others' copyright and engaging in "extortion-like" rights protection have already disturbed the order of the copyright market.
 
According to Wang Limin, director of Xuhui District intellectual property court of Shanghai, on one hand, the increase of image copyright cases helps Internet platforms and users to correctly use pictures and makes the Internet industry pay more attention to image copyright; on the other hand, some companies use legal loopholes and take image copyright protection as a way of making profits. Facing high litigation cost, some defendants have no way but to seek a settlement with stock image companies, giving these companies more incentives to illegally protect their rights. Some companies even use background systems to automatically discover infringements, and file a lawsuit when there are certain number of infringing pictures. With some promotion methods, these companies can make a passive copyright deal. We should realize that the aim of "rights protection" is, instead of extortion, to protect creator's rights and interests and encourage innovation. Illegally making profits through copyright lawsuit should be punished in accordance with law.
 
All in all, to protect image copyright, relevant authorities should improve relevant laws and strengthen regulations, whereas enterprises and users should raise awareness of copyright and abide by relevant laws and regulations. With concerted efforts of all parties to maintain order in the copyright market, China's copyright market and IPR protection environment are bound to be increasingly improved and prosperous.

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