Several legal issues about micro-blog reproduced Zhu Wei Renmin University of China School of law

Several legal issues about the micro-blog

Zhu Wei Renmin University of China School of law

Upload time: 2012-12-2

One, "micro-blog copyright" how to identify

Our micro-blog has more than 50000000 users, the daily micro-blog browses a quantity to already 100 million. We use every day micro-blog recording and publishing information, through micro-blog to obtain information and understanding of the world, in this sense, the "micro era" has arrived. In micro-blog flourishing today, micro-blog copyright problem becomes the important problem that the law and public concern: micro-blog exactly have copyright? Micro-blog "transfer" and "transfer" whether there were differences? Who the hell are all micro-blog copyright?

Problem a: micro-blog exactly have copyright?

The micro-blog copyright suspicion is mainly from micro-blog many innate special properties caused by. First, micro-blog short, not more than 140 words at most, so short items have copyright? Secondly, micro-blog information is transmitted mainly through between the friends of Bo "Pyramid shaped" radioactive reproduced to achieve, since you are random, so how can the copyright? Thirdly, some micro-blog record is only a "current account", or only a few expressions, are these not the creative expression have copyright?

According to the relevant provisions of the law, to protect the copyright of works the core criteria -- whether has the originality. As long as the original author's thinking is the expression, and the expression is "tangible and can be replicated" intellectual achievements, then you should enjoy copyright. Visible, the law does not make the restrictive provisions, the number of copyright text so, micro-blog is small, is copyright.

From another perspective, since the law requires micro-blog as the main criterion works protection is "originality", some with only a single "interjection", "expression", or "current account" simple words, do not have original meaning from the nature, also does not have any communication value so, from the content, those words or symbols is too simple, not the scope of copyright protection. In addition, a special form of mutual reprint is an important way to micro-blog expression, cannot reprint acquiescence to judge right of copyright to abandon, in other words, allow and participate in each other micro-blog reproduced only is not to deny that micro-blog copyright reasons, on the contrary, it is a kind of special right exercise of copyright.

Question two: micro-blog "transfer" and "transfer" whether there were differences?

Reprinted and cited are two important forms of micro-blog propagation, but two in the legal nature is different. Traditionally, without the permission of the rights of the reprint is typical of the copyright infringement form. But why micro-blog reprint do not assume responsibility? This is because, micro-blog route of transmission is the blog reprinted from each other, this is a micro-blog common sense knows that, in general, reprint each other is a micro-blog users expect and support behavior. From the legal standpoint, "tort liability law": "the damage was deliberately caused by the victim, do not assume responsibility" behavior, since reproduced this behavior is bloggers want to see things, so even if is there is the nature of the infringement, but also the right people intentionally or actively pursue behavior, so the the law and no liability. Said popular point, is the "Zhou Yu hit Gai" -- one is willing to fight, one is willing to endure, since micro-blog, then must comply with the "rules of the game". This reprint each other means of communication from a sociological understanding is -- all for me, I for everyone, resource sharing and sharing is one of the important reasons micro-blog vigorous.

Quote reprinted with different, it is the rational use of copyright law provisions of the typical. China's "copyright law" expressly provides for the review, a work, or demonstration of a problem, you can refer to the appropriate published works of other persons in the works. Visible, micro-blog comment and legal nature of the transfer from law expressly authorized reprint, and more from the blog to share the spirit of.

Notable is, since there is no law expressly authorized reprint, the behavior must undertake the duty of care more. First of all, you must indicate the original source, and no other legitimate rights and interests of copyright owners, such as not to tamper with the author's name, will be allowed to change the work content etc.. Secondly, reprint acts must be free, if the unauthorized use of copyright works for other economic benefits, then this behavior will be punished by the law, such as some media will micro-blog finishing published behavior, must obtain authorization of the copyright, but also need to pay, otherwise it is not good to reprint behavior, theft but the copyright violation. Finally, if the blogger marked "note in the works shall not be reproduced, so other blog" it shall not be reproduced, or copyright shall have the right to appeal the law to safeguard their legitimate rights and interests.

Question three: who the hell are micro-blog copyright person?

The problem is more complicated, we divided into several levels: first, the network service provider liability (site) is not micro-blog copyright person. This is because the site only provides information storage and upload service, no substantial effect on works of creative activities, so the site is not the copyright owner. Second, reproduced not micro-blog copyright person. Micro-blog reprint is only a means of communication, reprint content without any change, so micro-blog copyright is still owned by the original blogger all. Third, it is part of human rights. Micro-blog quoted aims to review, review part is the embodiment of creative intelligence achievement of other people, so other people enjoy rights to my comments section, to quote the original part is not copyrighted. Fourth, the people in reality is the copyright owner. A virtual special phenomenon -- a reality in many existed in practice may have more than one "vest", namely the multiple identity on the network. These "vest" in academic language is virtual personality, the current law of our country does not virtual personality treat as the main proceedings, therefore the virtual human is not the owner legal. So, those in the network by the virtual name the works, the right of ownership still belongs to the people in reality, in the litigation in reality as a party to.

Two, about the "first case" micro-blog legal interpretation

Haidian court of Beijing city in March 26th this year the first trial Qihoo 360 chairman Zhou Hongyi used micro-blog infringing the right of reputation acts constitute infringement should bear tort liability, including a public apology and compensation for 8 yuan. I think, this decision is correct in the application and interpretation of law, judicial judgment for court to make plays an important role in regulating and adjusting the "micro era" network order, some important legal questions need to interpretation and research.

With the 3G mobile phone, intelligent communication tools of the popularity and micro-blog user group explosive expansion, China's micro-blog era has arrived, the heart, everywhere the hair thin has become a typical characteristic of the time. "Micro era" and the former network times compared with the obvious characteristics: first, micro-blog and mobile phone after binding, the blogger blog is not restricted by time and place, the words are always release uploaded to the network, the evaluation can be read at any time other netizens; secondly, the most words micro-blog limited, 140 words thus, content expression mostly "awesome" and relatively straightforward; again, "micro era" to come closer to the upper elite and the grassroots connection, in the past only through media reports to come into contact with the various "celebrity", now as long as their huge fans can whenever and wherever possible attention to their daily activities it seems celebrities, "live" in the US; finally, micro-blog influence a geometric diffusion, in the user comments and the continuous, micro-blog information transmission speed is up to the instant, especially celebrities to the micro-blog due to huge fan, Bo main blog information dissemination and the like lightning fast, but it also produced a "lightning", on the one hand, the enormous commercial interest to support some celebrities micro-blog speech, on the other hand a Once these micro-blog content has the nature of infringement, so bad influence will be expanded as "lightning".

These features make the micro-blog in application and understanding of the relevant law, should follow the law, in accordance with the general network tort elements processing, special and clear micro-blog, similar cases in trial and judgment time different from common network dispute. Now I'm with recent the "celebrity micro-blog first case" say should how to handle micro-blog infringement cases.

First, micro-blog tort and the blog infringement, infringement as BBS, belongs to one kind of network tort, tort liability law "applicable" in article thirty-sixth of the network special provisions. Internet users for micro-blog infringes upon the civil rights, should bear corresponding civil liability, not because of the special nature of the tort liability micro-blog based change. The law on whether a behavior is infringement liability, is the most important consideration is the actor has subjective fault, specific to the micro-blog tort, whether the person is a posting to the reasonable care. If micro-blog hair information basically true, or have no malice, so it can be assumed that people have to make a duty of care, does not have the fault also need not assume responsibility. But if the information and facts of the serious discrepancies and having no good purpose, and the violation of the legitimate rights and interests of others, then we need to bear the corresponding tort liability. The court in the tort that, on whether the actor has subjective fault identification is to determine the nature of the core standards. Micro-blog because of its instant release and arbitrariness, duty of care can not bear the higher rank bloggers on the release of information, if the netizen should check it on any release of information, so micro-blog also lost the meaning of existence. So, from this perspective, the legal obligation of caution issued micro-blog tort requirement low, generally only in micro-blog publishing responsibility only intentional tort cases, because of negligence resulting in the law of tort liability exemption. Judging from the constitutional perspective, micro-blog as a new form of citizens freedom of expression, freedom of opinion expression is better improved, therefore, should try to protect the new method not to restrain it. For the reason, some people believe that this micro-blog freedom of speech than other media, actually this kind of understanding is wrong. In essence, the micro-blog citizens freedom of speech and expression level than other types of more free, but the law on the duty of care requires the bear a little smaller.

Second, celebrity hair micro-blog duty of care should be higher than that of ordinary people. The so-called celebrity, in the legal concept that is able to cause public figure of public attention. Theoretically the public figures can be divided into political public figures, entertainment public figures and voluntary and other types. The characteristics of public figures is a high degree of social concern, speech and deportment, their behavior was the public's attention, in the face of social right "rights", as a public figure of the "individual rights" is restricted. Generally, the right of privacy and reputation and other rights in the public comment on the civil legal rules, cannot be applied to stop, in most cases can only suffer in silence. For example, some time ago Zhang Zhaoyang exposure big wedding in micro-blog in the event, in law, I unable to violations of privacy that tort liability to Zhang Zhaoyang, because s is a public figure, so the degree of protection of her privacy would be subject to certain restrictions. Another characteristic of public figures is a tremendous social impact. Judging from the number micro-blog fans, large degree of celebrity fans number is any ordinary people cannot realize, therefore, celebrity micro-blog influence far more than ordinary people. Because of this, the law must be in the regulation of celebrity micro-blog causticization on duty of care is higher than the ordinary people. Generally, the celebrity micro-blog tort with fault as the core elements. Fault include intentional, including negligence. From the Haidian court of "the first case" micro-blog reason also confirmed this point, "Zhou Hongyi as a public figure, have more fans, more power, he will reveal to the public the negative evaluation of competitors, should think thrice before acting, restraint, the micro-blog limits the freedom of speech should be higher than the ordinary Internet users". Also should notice, public figures are also citizens, should guarantee the right of free speech, but the law in the equity of the individual rights and interests of the whole society, tend to focus more on the latter. If the average person in the micro-blog published like Zhou Hongyi's comments, I believe the courts when more attention to consider is to protect the freedom of speech, and Zhou Hongyi as a celebrity on the malicious micro-blog is obvious, the court will be more focused on the above consideration, a bad influence on the society. Therefore, the court before the judgment against Zhou Hongyi. If we analyze it from the angle of law and economics, celebrities can use its speech huge social influence to obtain good economic returns, such as celebrity advertising, also should be the social influence and assume greater social responsibility, legal only in this way can the subtle relationship between equity.

Third, the site micro-blog infringement should bear what responsibility? We see no infringement micro-blog site responsibility judgment in the court's decision in Haidian, this is not to say that the site micro-blog tort can be aloof, web sites need to assume the tort liability law is to make the provisions of the second paragraph of this article -- "tort liability law" thirty-sixth responsibility for the site situation made abstract rules. The second paragraph, "network users utilize the network to commit a tort, the infringee shall have the right to inform the Internet service provider to take delete, shielding, broken links and other necessary measures. The network service provider after receiving the notice did not take necessary measures in a timely manner, jointly and severally liable for damage to expand with the network subscriber". This provision is the "notice to remove responsibility", mainly has the following meanings: firstly, under normal circumstances, the site do not have the right and obligation of Internet users upload post review in advance whether tort; second, if the netizen found infringement information exists in the network, have the right to notify the site to take prompt and effective measures; thirdly, the site after receiving Internet users notice, should take immediate measures to avoid the infringement results expand; fourth, the site after receiving the notice, if it fails to take necessary measures, then we need to bear the corresponding tort liability. According to the micro-blog tort, under normal circumstances, the site can not be done to review each micro-blog information, if the netizen found micro-blog involving infringement, can choose to notify the site, site infringement notice received after has take the measure of responsibility, if not to take timely measures, then we need to assume corresponding responsibility. Of course, users can also choose not to notify the site and consult directly with the hair micro-blog people solve, but this method is time-consuming and laborious, especially in micro-blog cannot contact the main case can not effectively prevent the infringement results expand. At the same time, if the prior by the infringer did not inform website tort to happen, so in the event of legal disputes, nor the website claims to tort liability. In the "first case" micro-blog, prosecution without prior notice micro-blog tort website, the website does not have the responsibility of tort law, also do not assume responsibility.

To make a long story short, "the first case" micro-blog trial has ended, we believe that with the development of technology, micro-blog infringement will emerge in an endless stream, it will never become the "last case micro era". In the "micro era" we need to pay attention to, without border zone micro-blog is not legal, regulation is still by the reality of laws. If the netizen found himself being tort when, should contact the site immediately, expand demand to take necessary measures to prevent the infringement results, not to contact each other bloggers, because to do so may fall into "slobber war" is difficult to extricate oneself, don't yell and in their micro-blog, "violence" is a violation the spirit of the law the behavior, not only can not be recognized by law, but also will be punished by law. Finally, advise the so-called "celebrity micro-blog" sentence, please cherish your honor society, greater voice means more responsibility, please make oneself an example, not to abuse the right of discourse, or waiting for your not a fan of the Blitz, but the legal sanctions.

Three, micro-blog Legal Countermeasures

We are glad that this time life have Internet, praise network technology brings infinite quick and efficient, we are fortunate to live in this age of freedom, with micro-blog and mobile phone technology makes us enjoy freedom of expression has never been. 2010 is known as "the first year, micro-blog" technology makes establishment and brilliant modern populace media world. The reason why we love micro-blog is that it not only gives us the freedom of expression of hitherto unknown, what is more important, micro-blog shine the light, so that the dark side of the society has no place to hide. In recent years, micro-blog exposure to various "door" to purify the society, defending democracy and freedom, make the network truly become the "through train" public opinion ", to change China onlookers" effect. In this sense, micro-blog is no longer a simple communication technology, and has become an important means of expression of public opinion. At the same time, the government departments have also "Jian Bo Li said," instead of boring documents to micro-blog form, "people first" people first and expression of "administrative" has become an important symbol of service type government.

In our society micro-blog created a legend, also cannot avoid the drawbacks of the, I call it the "Bo war": the use of micro-blog spread the privacy of others, the publication of false information, disturb social order, fraud others money, abuse others, infringing the right of reputation for crime series, even on the use of micro-blog group to overthrow countries and so on. In fact, in the hundreds of millions of micro-blog users, there are a few criminals, they use micro-blog convenience and influence of violating the rights of others, disturb the normal order of the society, bewitch mass spread rumours to create trouble.

Earlier the West Asia North Africa social turbulence and political upheaval micro-blog (twitter) plays a key role, large-scale riots recently occurred in the UK organizers also is through micro-blog (twitter) of organized crime. We in the political and economic problems of reflection of these countries at the same time, huge social influence should also micro-blog possible to know: on the one hand, must certainly micro-blog free for our democratic society bring "sunshine effect", on the other hand, the regulation of law must be carried out illegal activities on the use of micro-blog behavior. That is to say, we should not only ensure micro-blog free to, and in accordance with the law regulation micro-blog freedom. This may be a natural contradiction, so far in the academic circles and practical circles still debate.

Against micro-blog strengthen supervision. That micro-blog, is only a kind of technology, is neutral born, as criminals use telephone communication series for illegal activities can not be the Telephone Bureau responsible, micro-blog itself should not have the responsibility, they also believe that, micro-blog free from "constitution" given the freedom of speech, this gift human freedom itself has the highest legal attribute, to limit any person or organization can't.

Support for micro-blog to strengthen the supervision of the voice that, like other forms of micro-blog tort infringement, there is no special law, it is because of micro-blog spread fast and did not release the audit mechanism, so we must conduct special supervision on the micro-blog. They think, no limits freedom may infringe upon the rights of others, it will deviate from the free itself, the illegal supervision is a form of human rights safeguard more.

I support the latter view, for the following reasons:

The law must give to morality

Technology is the product of human social and economic development, nature does not have the moral attribute. As "the Bible" says, angels and Demons also came. The neutrality and the two sides of technology can make the benefit of social tools, can also become a social tool backwash effect. As nuclear energy can be used to destroy human weapons, can also be used for civilian power generation, micro-blog technology can convenient our lives, also can be used as the instrument of crime.

We are thinking of new communication technology, mobile phone Blackberry morality to micro-blog represented, embodied in the riots in Britain recently on. British Prime Minister Cameron in a review of riots reasons when stressed, "the government is studying whether to close micro-blog, gregarious website or Blackberry messenger service riots in the future, or prevent the rioters use of these social networking tools series." The reason for this is, "the free flow of information can be used for good, can also be used to do a bad thing", "if someone use social network violence, we need to stop them." Seemingly this statement and the earlier Cameron for Arabia world social unrest that Internet freedom idea is completely different, at that time, Cameron opposed to countries in the Middle East for the network micro-blog, mobile phone communication control, he said "we want to keep the free flow of information, regardless of our attitude towards the web content is what." Many people have questioned Cameron before and after the two contradictory statements, whether he is to support regulatory supervision on means of communication, or against? In fact, Cameron the two speech -- that same technology itself amoral, when technology ethical (British interests) on the need to support, when technical breaches of ethics on the need to oppose.

This event happened in multi block Blackberry mobile phone case. Blackberry mobile phone (Blackberry) is a wireless handheld e-mail Canada RIM company address terminal equipment mobile phone, the mobile phone is characterized by itself mail system support encryption communication. Blackberry mobile phone information will be encrypted, only allows the recipient to use key to read the information, in addition to anyone unable to decrypt the information, monitoring can not be government departments. It is because of fears that the technology could be criminals as illegal contact means, cause on the national and social security, more than a dozen countries represented in India were "ban on its". Recently, the British Prime Minister Cameron also said, "the rioters' Blackberry messenger 'this closed network organization riots. We need to figure out how to them before they approach." Originally "Blackberry messenger" as a personal play a very good protection, but may be used to avoid the government engaged in illegal activity monitoring tool, it also proves that the technology is not inherently moral.

These events show that micro-blog (twitter), Blackberry messenger and social networking sites, advanced communication techniques have been illegal use of hidden dangers, but such abuse has been domestic and foreign events confirmed the existence of numerous times, therefore, we must give these advanced communication tools to morality, so as to achieve the purpose of draw on the advantages and avoid disadvantages strengths. To the moral means of law. At present our country for micro-blog new legal regulation of the Internet, and the emergency response mechanism to strengthen technical supervision of the special period of establishment, legal updates must keep up with technological change, the law must give the technology to moral.

The law must be bound to micro-blog free regulation

The root micro-blog achievement of civilians "since the media" to enjoy the right of freedom of speech in China's "constitution" stipulates the citizen, but citizens in exercising the right of free speech when, must abide by the Constitution and the law, and shall not harm the national interests and social interests, nor infringe upon the legitimate rights of other citizens. Even if it is developed in the UN "Convention on the civil and political rights", also will be the rights of others or reputation and the protection of national security, public order, public health and morals as citizens to exercise the limits of freedom of expression of respect. Visible, the freedom of expression in micro-blog should be legal under the restriction of freedom.

Recently, the British "world news" happen "scandal" incident exposed western media tend to abuse the excessive expression of freedom. The event brought us the lesson is free, no limit can be transformed into the rights of others. Similarly, in the field of Internet users micro-blog in exercising their freedom of expression is not infringe upon the rights, otherwise it may be subject to legal sanctions. In the "micro-blog infringement case", Haidian court Qihoo 360 chairman Zhou Hongyi used micro-blog infringing the right of reputation acts constitute infringement should bear tort liability, including a public apology and compensation for 8 yuan. The decision that micro-blog not law "no border zone", micro-blog not personal diary, but the information public platform, even express their emotions in micro-blog also careful not to infringe upon the legal rights of others.

Some people worry that if too much emphasis on legal restrictions on freedom of expression on the micro-blog, Is it right? Will influence the effect of exposure micro-blog social dark side? In fact, the worry is not necessary, because the law involves public interests, event exposure in the field of freedom of expression, even relates to the relevant personnel of privacy, portrait rights, but because of the comments related to public interests, so most of them can be exempted from the tort liability.

But from the micro-blog long-term development perspective, in the legal regulation of the micro-blog will have more vitality and influence. Micro-blog has the characteristic of "We Media", each people all have the "play" information publisher role may be, but these micro-blog information credibility, or the truth of the news sources are increasingly in doubt. In Beijing recently due to torrential rain water event as an example, in the micro-blog widely forwarding "water" news pictures, prove to have been "a false picture of PS". In the picture we'll laugh at resort to deceit, but if micro-blog published earthquake, tsunami, explosion may affect social stability of the rumor? It is likely to cause social panic, and triggered a chain reaction, "Yiyansangbang" this idiom to describe is not excessive. Many users simply to increase their micro-blog "visibility", false news at fabricates sensational or click on the quantity, the 2010 "ten false news" of "Jin Yong's death" news, the first is the source of micro-blog.

Is that a lot of false news is everywhere in our micro-blog, more and more people have already no longer trust from micro-blog news, the lack of legal regulation of "make irresponsible remarks" makes micro-blog integrity more and more "vulnerable", if this continues, the future micro-blog is likely to become the Internet information "garbage", this result is that we are not willing to see. So, be imperative laws and regulations necessary to carry micro-blog, no legal freedom is the abnormal free, one day it will hurt our own.

Comprehensive real name system is purified and governance micro-blog "medicine"

The so-called micro-blog real name system, Internet users not to use their real names in micro-blog. Just ask users to use their real name and real data in the register of registered successfully, in the end, micro-blog can also play a character name. The real name system in some micro-blog platform has another name "authentication user", the network service provider authentication micro-blog users have more credibility, this is because the real name system for the virtual world and the real world together, once micro-blog legal problems in the real world, specific legal accountability system apply directly, without having to worry about the blogger is "zombie".

A lot of people think, the real name system may lead to micro-blog Bo main worry that take revenge and reduce exposure to bad social face, Zorro took the "Mask", he also dare to Hangxiazhangyi? Actually this kind of worry is more secure, Internet real name system exists only use the real name registration stage, without the use of micro-blog, identity is preserved by the relevant departments of encryption, it is strictly prohibited to leak, otherwise, network service providers will undertake the corresponding civil liability, and even criminal responsibility. But the real name system did not increase the risk of identity disclosure, even without the implementation of the real name system, to investigate the netizen's true identity is not possible, as long as the IP analysis to find the person, therefore, exposure of user's real identity is not the real name system trouble. In addition, in the real name system under the "public opinion" more often than in the virtual name "public opinion" more real, more reliable, the real name system can greatly reduce the number of false information, thereby improving supervisory departments using the network source and the bad social efficiency.