How to break ‘safe harbour principle’ to protect creators’ rights

The self-media era and the popularity of online information technology have led to a spate of copyright infringements on major online platforms. However, due to the “safe harbour principle”, network service providers can generally escape liability and turn a blind eye to a large number of infringements to the detriment of creators’ rights and interests, as long as they prove that they have taken appropriate measures to stop them after being informed.

This article uses the case of Guangzhou Jiayan Culture Communication v ByteDance and Youjiu Media, in which the author represented, to discuss copyright protection on the online platform.

Case summary

The plaintiff, Guangzhou Jiayan Culture Communication (Jiayan), was the creator of the articles in question, published on WeChat public websites with a huge cumulative readership. The defendant, ByteDance, operates Toutiaonet, a dominant network service provider of information distribution in China, with many registered and daily active users. Toutiaonet had plagiarised many articles from Jiayan, who had complained repeatedly but still could not stop infringements that undermined its interests as a creator.

Defending ideas

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  To clarify the role of ByteDance. Because a number of infringing articles of Jiayan were distributed to different sections of Toutiaonet, the legal counsel argued that ByteDance was not just a network service provider of information storage space, and therefore could not apply the safe harbour principle. At the same time, the court was requested to investigate the back-end classification algorithm technology and the front-end distribution method of articles on Toutiaonet. According to the investigation results, ByteDance’s text classification algorithm essentially filtered and recommended articles, which was also an editorial act in disguise, thus ByteDance not only provided information storage space on the online platform but also substantially managed the articles in question.

• To clarify the nature of ByteDance’s act. As ByteDance did not directly publish the infringing articles but rather provided the online platform for their publication, it cannot be regarded as the direct provider of the articles. Therefore, the legal counsel considered defending from the perspective of “contributory infringement”. As mentioned above, ByteDance’s act of classifying and distributing the infringing articles to the corresponding section of the platform led to their wide dissemination, which should therefore constitute “contributory infringement”. Also, because Toutiaonet is a well-known online information distribution platform in China, the widespread dissemination of the articles has earned it more attention and viewership.
• To determine whether the safe harbour principle is applicable. The term “safe harbour principle” means that when an online service provider provides services, if a recipient uses the network to commit infringement, the service provider may, under specific conditions, be exempt from liability for damages. The safe harbour principle applies to online service providers, but the term “online service provider” is not expressly defined in Chinese legislation.

In this case, the legal counsel demonstrated from the following six aspects that ByteDance should constitute infringement and cannot apply the safe harbour principle:

1. The nature and manner of service provided by the network service provider and the possibility of infringement;
2. Whether ByteDance, as a network service provider, took the initiative to select, edit, modify and recommend the works;
3. Whether ByteDance provided technical support and other assistance acts;
4. Whether ByteDance had taken necessary measures such as removal, blocking and disconnection of links;
5. Whether ByteDance had actively taken reasonable measures to prevent infringement; and
6. Whether ByteDance should have a higher duty of care.

Ultimately, the court of first instance adopted the counsel’s opinion and ruled that both ByteDance and the publisher constituted infringement and should be held liable for damages to Jiayan. The court of second instance rejected the appeal of ByteDance and upheld the original verdict.

Guidance and social significance

The judgment of second instance in this case stated: “It should be noted that technology neutrality does not necessarily justify profiteering through the use of technology, and the safe harbour principle cannot be the basis for online platforms to evade legal responsibility. With the change of online platforms’ operation mode and the development of text classification algorithm technology, the online service providers of user-generated content sharing platforms not only provide information storage space but also acquire part of the copyright of works on the platform for free through user agreements, far beyond being mere ‘bona fide gatekeepers’ of information storage space …”

Online creators have commented on the verdict, describing it as the “first lawsuit by a creator against a platform”, or “opening up a precedent for copyright protection in China”. Many writers on technology have also praised the verdict for its strengthening of IP protection under the law.

This case brings the protection of IP rights of copyright owners to platforms’ attention, curbing the “evils” of infringing IP rights and protecting the “good” of copyright owners to share their creations, by depriving infringers of a breeding ground for unlawful actions.

Yan Xiang is a senior partner at SGLA Law Firm. He can be contacted at +86 18588867636 or by email at xiang.yan@sgla.com

Wu Liyuan is an associate at SGLA Law Firm. He can be contacted at +86 15989158903 or by email at liyuan.wu@sgla.com