Good morning, colleagues and friends. It is a great honor to come to the Lawyers Development Forum to discuss intellectual property issues. Yesterday, I attended the inaugural meeting of China Intellectual Property Judicial Research Committee held in the Supreme People's Court. I call this meeting the most perfect friendship between academic circles and judicial circles in the field of intellectual property rights, because President Qian Gang and I are the directors of various professional committees respectively, and I think it is also an excellent opportunity for us. Come to this meeting today, I want to cooperate with all my lawyers and friends again. My topic today is the copyright industry and copyright protection in the Internet age. It can be said that we have entered an era of innovation characterized by the knowledge revolution. The technical characteristics of this era can be said in two sentences. This is the era of network technology and gene technology. Because of time, 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 enjoying the convenience brought by internet technology, we have to endure the pain brought by this technology. In Dickens' words, this is the best time and the worst time. This is the best time. We really have to admit that network technology has brought us great convenience in information transmission and acquisition. The network itself is an industry and has become a tool for the development of knowledge economy in the 2 1 century. According to the information I have, by the first half of this year, the number of Internet users in China has reached 250 million. What is this concept? In the first half of this year, compared with the same period last year, there was a net increase of 9 1 10,000 people, equivalent to one and a half times the total population of Germany, with a net increase of 56%. Second, by the first half of this year, the commercial scale of Internet in China had reached 654.38+0.46 billion, while in 2006.5438+0, the commercial scale of Internet was only 30 million. We now see that the subprime mortgage crisis in the United States last year and the financial crisis triggered this year may become an economic crisis that shook the world, but we can see that with the support of 250 million netizens in China, the development of the Internet industry will be in the ascendant with good momentum. So I said this is the best time. However, we have to admit that this is the fastest era, because Internet technology has broken the traditional interest pattern among copyright owners, disseminators and users. In this internet field, I think the traditional film industry, audio industry and publishing industry have already had fierce conflicts of interest with the network technology industry. We see that in network business, network technologies based on network video, network music, network news, network shopping, BBS, blog and video all involve copyright issues.

Therefore, as a lawyer, the most important thing to pay attention to is copyright disputes and online copyright disputes, which can be said to have increased sharply now. According to the statistics of Beijing Higher People's Court in the first half of 2007, more than 700 copyright cases were accepted that year, accounting for 75% of online copyright disputes. Therefore, from an image point of view, film and television companies are most worried about such legal disputes in the Internet age, internet companies are most uneasy, and copyright companies are most happy. If there was an online copyright dispute a few years ago-this kind of dispute is more and more full of storms, and now I think it is an endless storm, then online copyright disputes are inevitable. In my opinion, I want to talk about the three most important issues of online copyright.

First of all, I will talk about the legal issues of search engine service providers. Search engine can be said to be the most common problem in the application of network technology and its business model. Search engines involve music search, video search, picture search, book search and keyword search. Except keyword search, other searches involve copyright issues, while keyword search also involves trademark and anti-unfair issues. What's the problem now? What kind of legal responsibilities do search engine service providers bear when providing users with search and connection services? Now there are provisions specifically for the safe haven clause. The problem with this safe haven clause is that different people have different opinions. For example, Baidu won the case in 2005 and Thunder lost the case in 2008, which are completely different effects, but both of them involve legal issues undertaken by search engine service providers. I think the key issue is how to understand the safe haven clause.

I think there are two issues that deserve our lawyers' consideration. Is the subjective fault of the first search engine service provider based on direct and specific infringement or on the technology it provides? I think according to the safe haven clause, what is the responsibility of search engine service providers? When he receives the copyright owner's notice of rights protection, he should disconnect the direct link between your search engine technology and the copyrighted work. In other words, you should disconnect this link and stop this infringement. In this case, he may not be liable for compensation, but if there is a connection between your search engine technology and copyrighted works, you may have to bear the same tort liability. What's the problem? Do we judge his subjective fault according to such a direct and concrete infringement or the technology itself? I think my view is that we can't directly identify the tort liability of search engine service providers according to the search engine technology itself, and think that they are subjectively at fault. This is because there has always been a technology neutrality principle in the high-tech field, which is also called the reasoning principle in American courts. However, when Japanese reasoning companies invented camera technology and video technology 30 years ago, film and music companies also provided infringing technology, and the US federal court ruled that reasoning companies had to pay huge compensation. Therefore, according to the principle of neutrality, this technology can be used for both legal and illegal purposes, and it does not feel the value judgment itself. In this case, it is determined that the provider and user of the technology do not constitute infringement. Therefore, in this case, we can't determine that the service provider of the search engine is at fault according to the technology itself. This is my first point.

The second point of view is how to determine that the subjectivity of search engine service providers is knowledge but cognition. This kind of cognition is a kind of practical cognition. When the obligee comrades advocate the rights of search engine service providers, if the service providers still link their search engines with copyrighted works without making corrections, the problem lies in cognition. What is the status of recognition? I think cognition is a kind of presumed cognition, which requires the service provider not to turn a blind eye to the obvious infringement, and he 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? The red flag is eye-catching and easy to identify. As an engine service provider, to see the possible infringement, just like seeing a bright red flag, you can't turn a blind eye and assume the obligation of monitoring, deleting and eliminating. I think search engine service providers should pay attention to this aspect as much as possible when providing related services in the Internet age. This is my first question.

The second question is about the responsibility of digital library. Digital library is also a commercial operation mode in the Internet era, which can be said to be in the ascendant and has a good momentum, but the copyright disputes caused by it are also constant. As early as 2004, when a British political professor sued the digital company for illegally transferring his works to the digital library for others to pay, it should be prosecuted. Last year, hundreds of scholars sued Superstar, and this year it is even worse. This year, there were two very influential lawsuits. One is that doctors and masters of 148 sued Wanfang, and then more than 100 doctors and masters sued China Academic Journal Network, because the two digital book companies digitized the master's and doctoral theses of China without permission, which brought the business model of digital library. China's digital network communication regulations have strict restrictions on the rational use of digital libraries, and three conditions must be met. First of all, the scope is limited, which means that the books used digitally are limited to those in our library, which means the scope is limited. Second, there are purposeful restrictions. Your use must be to save and show these versions. Third, there are restrictions on use, which are limited to non-profit use. However, we can see that at present, except for a few public purposes, most of the commercial operation modes of digital libraries are for profit, that is, a commercial operation mode. It digitally saves or scans books, and then stores them in the digital library for users to pay for them.

From this point of view, it is very reasonable to use it, but our law does not stipulate that such laws are allowed to be used, so digital libraries can only be used through authorization. Authorization is a massive authorization, which is difficult to achieve. This led to a series of lawsuits. The cool dog here also has a digital library model, but its fate is completely different. Kugou has a business model of book search, which is to digitally scan books, then make documents and return them to Kugou's book database for users to search. Users can read 6 pages of the searched books for free. After reading for free, they can buy paper books directly from suppliers through the links of sales books provided by Cool Dog, which is a kind of Cool Dog. Kugou began to operate in China in 2007, and it is still safe, but the situation in the United States is not good. In the United States, three years ago, the American Writers Association and the American Publishers Association took the cool dog to court and played for three years. A settlement was reached in the second half of this year. What is the result of reaching a settlement now? Kugou must pay $65.438+0.25 billion to writers' associations, publishers' associations and related associations, and reach a new agreement. Cool dog can continue to digitize these books to satisfy users' search links. Because of the sales, advertising and other related income generated by book search, 67% belongs to the original copyright owner and 33% belongs to Cool Dog. Cool dog's business model and the three controversies I talked about last time have caused us some thoughts, involving at least three issues.

The first question, I think we should expand the scope of rational use of public digital libraries, and don't restrict them too strictly. This is a problem.

Secondly, the future revision of the copyright law of the general digital library can consider the relevant provisions of the use law.

The third issue to be considered in the digital environment is the authorization of written works under the network conditions. Collective management organizations of written works can be established to solve the authorization problem of massive works. These are all to be solved in the revision of copyright law in the future.

Let's talk about the last question first, the legality of technical protection measures for copyright works. This problem is the Microsoft black screen problem that everyone is interested in. Before I came, I saw a joke circulating on the Internet. Microsoft blacked out once an hour for you. Once hacked, you can take a short rest. What are the benefits? Now I'm not dizzy, my eyes are not bright, I'm full of energy when I walk, my body is great, and everything smells good. It is said that Microsoft is really humanized and really cares for your body. This is a black humor. In fact, netizens are indignant at this black screen measure of Microsoft. We have also noticed that some lawyers in Beijing are eager to try. Our users want to sue Microsoft. Some say that black screen measures constitute infringement, some say that they endanger our information security, and some say that they have constituted antitrust. Of course, I think you are more experienced than me in how lawyers conduct lawsuits. Here, as a scholar, I would like to talk about some views and ideas on how lawyers can sue.

First of all, let me talk about copyright. Copyright litigation must involve two major issues, the first is the subject of litigation, and the second is the punctuation of litigation, that is, technical measures. The litigant solves whether the client you represent, that is, the user of the software, can become a litigant. I don't think users of pirated software constitute legal users of Microsoft. I'm afraid many people disagree, because it is very easy to condemn Microsoft with indignation. But as a lawyer representing this lawsuit, I think it is more necessary to think rationally. I think the subject of litigation must be the subject of power. In this case, it is limited to users of genuine software. In other words, users of pirated software do not apply to Microsoft users in the legal sense. I think there are two kinds of users of pirated software:

First, users don't know and have no reasonable reason to know that the software they use is pirated. Generally speaking, this kind of user is not liable for compensation, because he doesn't know and shouldn't know. He thought he bought genuine software, but he bought pirated software. Subjectively, he should say that there is not much fault. In this case, he may not be liable for compensation, but it cannot be said that such users are not responsible. According to the copyright law, computer protection regulations and the relevant provisions of information network copyright, such users should bear the responsibility of stopping infringement and destroying illegal copies. According to Microsoft statistics, about 20% of users who use pirated software in China belong to this category. To this end, Microsoft has taken urgent measures to protect its legitimate rights and interests. If he stops using this pirated software, he can go to Microsoft's customer department to replace a set of genuine software with a legal and valid bill. This is the first type of users.

Second, users know that the software they use is pirated software. It should be said that this kind of user certainly does not constitute a legitimate user, and he knowingly uses pirated software. I think he is an infringement, and this infringement is two infringements. First, he illegally purchased and used pirated software, and enjoyed the related services of providing this software in this improper way. Therefore, I think the so-called black screen, in a word, is actually a genuine value-added verification measure. You can accept this verification, whether it is true or not. If you accept this verification and use pirated software, he will give you a warning measure. So I think the certified users should be genuine users of WindowsXP, and only they can become legal users. Of course, this genuine software includes the 20% I just mentioned. The genuine software I bought is actually pirated software. He didn't know and shouldn't know that it was pirated software and deliberately used it, not a legitimate user.

What I said above is the subject of litigation.

The second question, I will talk about the object of litigation, that is, the legality of black screen technical measures. Software technical measures refer to the effective technical means and methods to stop unauthorized and legally licensed decryption by using encryption technology. To put it simply, the right holder requires a database for his copyrighted works and adopts encryption protection, while the infringer, or the author of pirated software, adopts decryption method or circumvents technical measures, which is the opposite. 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. I want to say here that technical measures are not a right of copyright owners, but a means to safeguard and protect their rights. I want to explain here that some time ago, many people accused Microsoft of being a private relief, which is illegal. In fact, I think the technical measures of protection, as a means of private relief, have been recognized by international conventions and relevant laws in China, so this technical measure has legal significance and legal basis.

Next, we need to see whether this technical measure is legal or illegal. There are two major doubts. Some people think that this technical measure can only be used in the front, not in the back. In other words, if you are monitoring the use of genuine software, then you can use encryption protection technical measures instead of taking supplementary technical measures after selling the software. In my opinion, technical measures can be taken beforehand or supplemented afterwards. Crucially, the nature of such measures should be protective and warning, not aggressive and destructive. Some people compare the black screen measures with the technical measures taken by Jiangning Company in 2000, which I think is inappropriate. What did Jiangning Company's antivirus software eventually lead to? Causing crashes and data loss is destructive. I'll stop here about copyright. In addition, there are two issues that I want to briefly summarize here. I think Microsoft's black screen measures not only make us think about copyright issues, but also make us think about information security issues. As the world's largest software provider, Microsoft is really using its own market capital positioning, which is harmful to our information security, or it exists and is harmful.

Last month, I attended a high-level forum on software and integrated circuits in Beijing. I met Academician Ni Guangnan who specializes in software. He said that state information involves national security, enterprise information involves enterprise security, and personal information involves personal security. We must open our technical software to ensure our information security. The second problem involves monopoly operation, that is, anti-monopoly law. Now it can be said that Microsoft is suspected of monopoly and has formed an international knowledge. In April 2004, some intellectuals, including Los Angeles, San Francisco and California, sued Microsoft, accusing it of monopolizing personal Windows software development. In 65438+February of the same year, the European Court of Justice ordered Microsoft to implement the relevant decisions of the European Commission, and the European Commission determined that Microsoft constituted a monopoly. It is necessary to change the current business operation mode, change the current practice of bundling and open it to some competitors. I just want to talk about my own views on this issue for your reference only. Sorry, thank you!