Not long ago, the Hangzhou Internet court ruled on a case of infringement of the right to network dissemination of works information by an NFT digital collection platform. In this judgment, the court held that the digital collection platform should not only fulfill the responsibilities of general network service providers, but also establish an effective intellectual property review mechanism to conduct a preliminary review of the copyright of NFT works traded on the platform.
Then, from the perspective of the digital collection platform that specifically provides NFT digital collection trading services, how should we understand the establishment of intellectual property review mechanism?
At present, the sale of a digital collection generally requires the following basic steps:
In this series of steps, the digital collection platform needs to pay attention to whether the publisher (or publisher) owns or is authorized to cast the corresponding copyright of NFT digital collection.
Determining the publisher of digital collections is the first step in discussing the intellectual property review mechanism. Publishers of digital collections can be divided into the following two categories:
If the publisher does not fall into the above two categories, it will infringe the copyright owner or the party authorized to use the copyright of the work. When the digital collection platformAs a network technology service provider specialized in providing NFT digital collection trading services, it will also be required to bear corresponding responsibilities if it fails to fulfill the obligation of copyright examination of NFT works traded on the platform.
In fact, the intellectual property review mechanism of digital collection platform is not a blank. Many digital collection platforms also consciously deal with and prevent relevant infringement risks. For example:
In the pre event stage
During and after the event:
Then why is it still possible that the digital collection platform also needs to bear tort liability?
The main reason is that although some digital collection platforms have designed the above review mechanism, they have more knowledge of decorative design, andIt did not operate carefully according to the designed mechanism。 orThe designed review mechanism has limitations and can not meet the basic requirements of review obligations。
From the judgment of Hangzhou Internet court mentioned above, the court judges the responsibility boundary of digital collection platform from the following points:Trading mode, technical characteristics, platform control and profit model。
The operation essence, service content and underlying technical support of digital collection platform determine that it can not get rid of being included in the above four judgment factors. Therefore, the digital collection platform needs to build an effective intellectual property review mechanism.
At present, there are two modes of access for publishers of digital collection platform:
(1) Popular type
Since the entry threshold is not set for the publisher in advance, it is more likely to cause infringement. The publisher directly uploads and casts the pictures or works of others on the network without authorization.
Therefore, in the stage of uploading works, in addition to requiring the publisher to promise that it has the right to cast the collection and will not constitute infringement, the platform should also require the publisher to provide evidence, such as work manuscript, copyright registration certificate, etc., to prove that it is the copyright owner or has been authorized.
After the publisher uploads the works, the platform needs to actually complete the review process and retrieve and verify the uploaded pictures. If the infringement information is obvious, or it is found that there may be infringement after verification, it is necessary to further verify with the publisher, and the publisher shall make a reasonable explanation.
After the works are cast and released on the platform for sale, it is necessary to keep the infringement complaint channel unobstructed, and timely deal with and verify the infringement report information.
(2) Invitation type
Because the publishers are screened or invited in advance and the corresponding conditions are set, it can better prevent the occurrence of intellectual property infringement than the first platform. However, for the screened and invited creators and IP parties, detailed background investigation shall be conducted in advance, and the publisher shall also be required to provide corresponding supporting materials.
（1）The search and verification of uploaded works shall be basically comprehensive.In addition to the query in the national work registration information publicity system, it is also necessary to take into account the works publicly published on the Internet and offline tangible works, and basically conduct comprehensive retrieval and verification to avoid omission.
（2）It is suggested to set up a reward mechanism for infringement reporting and a punishment mechanism for infringement blacklist.Other users of the platform who have successfully reported infringing works will be rewarded and encouraged to participate in the supervision. For publishers who have uploaded infringing works, set up an industry blacklist. In addition to limiting the release of works on this platform, they also inform other digital collection platforms to strengthen the review.
(3) The audit post shall ensure that sufficient auditors are arranged,Complete the audit process truly and effectively。
As explained in the judgment of the above case: "The review should be conducted from the perspective of the obligations of good managers of network service providers, and the network service providers should be given certain independent decision-making power and review space. The specific requirements can be clarified and refined according to their own review needs, types of intellectual property rights, industrial development and other actual conditions within the framework of laws. From the perspective of judgment criteria, the standard of 'general possibility' should be adopted. ”
The form of NFT digital collection plays a positive role in the promotion of works of art. The purpose of constructing the intellectual property review mechanism of the digital collection platform is to protect the rights of the real obligee from being damaged, but it can not infinitely aggravate the review obligation of the digital collection platform and limit the promotion and development of works of art.
NFT digital collections have developed rapidly in recent years, but the legal risks contained in them are also constantly pouring out. At present, the digital collection platform plays an important role in the development of NFT. If it fails to properly prevent and deal with the risks, it will not only touch the legal red line, but also have a serious impact on the social evaluation and reputation of digital collections.
Therefore, the digital collection platform should also pay more attention to legal compliance and take practical measures to achieve legal compliance, rather than just hovering on the surface of the platform statement.