Page 305 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Appendix 8 Interview Record (Participant G)
An Intermediary-oriented Approach

only a part of the natural environment and user needs to put his/her own intellectual
contribution to make a new work. Whereas in this case, the user just converted the three
dimensional sculpture into two dimensional photos without contributing his/her own
intellectual creation. Therefore, it is copyright infringement.
Huang: Would the lack of attribution negate the fair-use finding?
Participant G: This issue was also discussed in the Five Sheep Sculpture case in which the
key ring does not identify the name of the sculptors. The intermediate court stated that
this lack of attribution is legitimized by the nature of key rings. Key rings are daily
necessities and it is inappropriate and unnecessary to put the sculptors’ names on key
rings. In addition, the key rings too small to write words. However, the higher court
indicated that it is technically feasible to credit the sculptors in small articles like key
rings.

d. Liability of ISPs (Internet service providers)
Huang: I have browsed the case database in en.pkulaw.cn from which I found many
copyright cases are dealing with the liability of ISP. What are the legal problems of
these cases? Is there clear guidance for legal application? How do judges distinguish ISP
(Internet Service Provider) and ICP (Internet Content Provider)?
Participant G: The application of Safe Harbor is quite clear and the Supreme Court
has released several judicial interpretations governing this issue. For instance, the
interpretations have defined the meaning of “directly profiting from infringing content”
and made a rather clear distinction between “providing content” and “providing service”.
If the copyright owner can demonstrate that the website has artificially intervene
the uploaded content, especially for commercial purpose, this website is likely to be
regarded as content provider. Also, if a website directly links the infringing content
without providing specific IP, it might be considered as ICP.
A troublesome problem is bad-faith notice sent by copyright owners. Some legal counselors
in Alibaba complained that many take-down notices are sent in a purpose of malicious
competition. The name of the commodity in Alibaba is usually long with different kinds
of descriptions to increase the probability to be searched by potential customers. For
example, a jean maybe named as “blue washed jeans with holes for young girls”. A
person who registers the trademark “holes” can send a take-down notice to Alibaba to
require all links containing the word “holes” to be deleted. Although these complaints
are obviously invalid since “holes” is functionally used, Alibaba should promptly delete
these links according to the copyright law until the accused producers send counter
notification to require Alibaba to restore the access. However, these producers will suffer
tremendous damages due to the loss of opportunities. Therefore, sometimes Alibaba
counselors will play the role of semi-judge, examining the substantial content of the
notices and ignoring the malicious ones. However, this may violate the safe harbor

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