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刘春泉律师电子商务专栏

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上海段和段律师事务所合伙人。 信息网络及知识产权专业领域资深律师。业务涉及商业地产,民航,企业商务法律事务,兼并收购,诉讼仲裁,高新技术企业认定,外商投资,等。 中国电子商务协会政策法律委员会副主任。

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A comment publsihed in Shanghai Daily  

2007-01-15 18:24:07|  分类: My Expertise |  标签: |举报 |字号 订阅

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                 A song worthy of fighting for
  
              2004 published in ShanghaiDaily       
                  Spring Liu /Liu Chunquan
 
 
  Does the free downloading of music on the Internet hurt or helpthe music copyright owner?
  There is a grinding debate on this issue despite a latestcourt's decision that declared downloading music free on theInternet is illegal.
  On may 10, the Shanghai No. 2 Intermediate People's Courtordered a leading literature Website to pay 15,000 yuan (US$1,800)in compensation to Warner Music, the Taiwan branch of Time Warner,for having offered free downloading of certain Warner musical workswithout prior consent or royalty payments.
  The warner Music versus Rongshuxia.com case brings homethe debate over whether copyright should be protected and whetherfree trial  listening of music on the Internet ispositive promotion of a copyright owner's product or a violation ofits copyright.
  Despite the judgment in its favor, Warner Music said itwas not
satisfied with the result and that it would appeal to a highercourt.
  The pending case would be important for about 7,000Chinese
Websites, which need to know whether or how to pursue freedownloading services.
  China amended its copyright law in 2001 to endorse the"right of
dissemination through Internet." It means that a copyrightowner has
the right to spread their work on the Internet. In otherwords, music dispersed on the Web enjoys copyright protection, asdo works
distributed via other media like a publishing house or filmstudio.
  In the above case, defendant Shanghai Rongshuxia ComputerCo Ltd
apparently violated Warner Music's copyright according to theamended copyright law.
  But rongshuxia argued that its actions were reasonable andlawful.
One big supporter was Fang Xingdong, a well-known ITcritic.
  He says the Internet's fast growth relies more ongrassroots
support, than on a few big companies. In other words, theInternet
would not have developed so fast if online surfers had notshown great interest in its convenience.
  Research shows that what attracts most Web surfers is itsfree
access to various and vast resources difficult to findelsewhere.
  Many music fans say they just like the easiness with whichthey can download music for trial listening. If the music is good,then it's more likely they will buy the copyright protected CD.After all, sound quality is much inferior on the Internet.
  Aside from concerns over sound quality, music fans hope tobuy
authentic CDs with their idol's liner notes and photos.
  From this perspective, both free downloaded music and CDsare not identical products. Getting the first for free should notseverely hurt the sales of the latter.
  In this sense, free music downloaded on the Internet ismore like promoting a song than a violation of its copyright.
  Defendant rongshuxia was the first Chinese Website to besued for copyright violation. In 2000, Rongshuxia won its caseagainst China Social Publishing House for publishing its onlineliterature without prior consent.
  That case was rightly decided. The publication ofRongshuxia's
copyrighted literature works absolutely reduced readers'willingness to register on Rong-shuxia's Website for the samecontent.
  In the Warner Music case, however, it is inherentlydifficult to
conclude that free trial listening will absolutely affect CDsales.
  But legal scholars argue the other way, citing theamended
Copyright Law that adopts "the right of dissemination throughthe
Internet." This is actually an exclusive right reserved forcopyright owners.
  As such, legal experts say Rongshuxia has infringed thecopyright owner's right without prior consent or royaltypayment.
  Well, that's what the law says. But is the law backed byrational reasoning? It's hard to say.
  Intellectual property law gives authors some monopolyrights to
encourage them to create and spread good work. But thismonopoly should not go unchecked.
  Lawrence lessig, a renowned professor of law at StanfordLaw
School, criticizes abused protection of intellectual propertyright. If too much is given to copyright owners, it stands to limitpeople's rational use of intellectual products.
  As the professor argues, free downloads for triallistening
(sampling content before buying it) and non-profit purposesdoes not
harm the copyright owner.
  As a matter of fact, this kind of free downloaded musiccan never be prohibited. In the US, CD makers sued the famousWebsite Napster in 2001 for its free music download service, andthe court ordered the Website to be closed. However, Kazaa andother Websites with the same service emerged. The number of usershas exceeded 7 million, far more  than the 2million users of Napster.
  Another legal dispute is whether a hyperlink to freedownload sites  constitutes an infringement.
  Some experts think that only those which provide downloadson their own servers constitute an infringement, and thoseproviding a hyperlink  should be free of copyrightinfringement violations.
  Otherwise, search engines such as Google and Baidu will bejudged to be big violators of copyrights, which is unfair.
  On april 22, in a case where Chinamp3.com was sued forcopyright
violation, the Beijing No. 1 Intermediate People's Courtdecided that hyperlinks provided by Chinamp3.com were not justordinary hyperlinks, but were hidden in such a way that users couldnot identify them as hyperlinks. Visitors would normally think itwas Chinamp3.com's server that provided the free downloads.
  Therefore the court said Chinamp3.com wasdeliberately
participating in information processing, thus constituting acopyright violation.
  The court opinion shows that judges have not declared ahyperlink to be illegal per se.
  This judgment should leave breathing space for innocentsearch
engines. Free music downloading on the Internet should bereasonably
restricted to non-profit purposes, but not flatlyprohibited.
  Spring liu was a lawyer with Lehman Lee and Xu Law FirmShanghai
office when writing this article.

 
 
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