This project examines how to address the risk of copyright infringement resulting from algorithm recommendation technology in Chinese Copyright Law and how to optimize the regulations of copyright filtering obligation for ISPs to keep the balance between copyright protection and data privacy.
Last Update: 30.08.23
The intelligent algorithm recommendation for personalized users has been widely used in major Internet service platforms all over the world. The case and empirical studies reveal that under the impact of algorithm technology, the difficulties in determining indirect infringement of copyright by Internet service providers have become apparent in judicial practice in China. This project aims to address the risk of copyright infringement in Chinese Copyright Law. With the evolution of technology and the change of institutions, the filtering obligation of Internet service providers has become an essential complement to safe harbor rules. The Article 17 of Directive on Copyright in the Digital Single Market of EU can be taken as a model for the reformation of copyright system of China. Moreover, this project examines how to optimize the regulations of copyright filtering obligation for ISPs to keep the balance between copyright protection and data privacy.
In China, the algorithm recommendation platforms tend to be pseudo-neutral from the perspective of their operation mechanism and their practice of intelligent algorithm recommendation, so algorithm service providers should be considered to know the fact of infringement subjectively and shall be liable for indirect infringement according to the provisions of the Chinese Civil Code and Copyright Law. Moreover, based on the content recognition, filtration, and recommendation functions of algorithms and its strong information management capability, the platform is supposed to undertake certain obligations of content examination, otherwise it will be liable for copyright indirect infringement as it fails to comply with the duty of care required by the safe harbor rule in Chinese Copyright Law. Besides, algorithm technology also raises concerns about data privacy among Chinese researchers, which emphasizes the importance of balancing copyright protection with privacy protection.
Based on a typological analysis of algorithm service infringement risks, practical examinations of algorithm filtering technology, and the delineation of obligations’ boundaries, it is necessary to impose the filtering obligation of copyright on algorithm service providers in China. For the reform of Chinese Copyright Law, in order to keep the balance between copyright protection and data privacy, it is important to strictly adhere to the principle of proportionality when establishing basic institutional frameworks, including the subjects, applicable objects, and filtering criteria. Introducing minimum requirements, dual pre-marking mechanisms, and triple post-complaint remedies can reconcile conflicts. Additionally, efforts should be made to ensure coordination with complementary regulations, algorithm registration, and the integration of new technologies.
REN Anqi
Prof. Kaizhong HU, Zhongnan University of Economics and Law, V.R. China
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