(I) Not Knowing the Identity of the Copyright Owner Does Not Mean There Is No Fault of Infringement

In some cases of infringement of the right of communication through information networks, the defendant often refuses to bear the liability for infringement on the grounds that they do not know who the copyright owner is and that they did not intend to use the work. Such a statement is obviously a misunderstanding of the constituent elements of fault in infringement. The establishment of a general tort has four constituent elements, namely, illegal act, damage fact, causal relationship, and subjective fault; special torts usually apply the principle of no-fault liability, that is, the actor's subjective fault does not affect its establishment. Except for network service providers, general copyright infringement by ordinary enterprises is subject to the fault liability principle. The state of mind of not knowing who the copyright owner of the infringed work is cannot exclude their subjective fault. The actor has a duty of care to inquire about the author before using the infringed work, in order to obtain the author's permission. Obtaining permission is the prerequisite for using their work, and the average person should have the above knowledge. In principle, without the permission of the right holder, and without any exemptions such as fair use or statutory license, the infringement can be established.

(II) Whether or Not There Is Profit Is Not a Consideration Factor in the Determination of Copyright Infringement

In one case, a network technology company found that a magazine used pictures to which it owned the copyright on Weibo, and sued the court. The defendant argued that the pictures involved came from the public network, and that its use of the pictures was not for profit, and in fact did not profit, and should not be considered an infringement. So, can making a profit affect the determination of infringement? The answer is no, for two reasons: First, whether there is a commercial profit motive and whether there is profit is only a factor that the judge needs to consider at the level of determining the amount of compensation for infringement; second, the absence of profit may be a paradox, even if it does not directly increase the actor's property, the reading and reprinting of Internet users will to a certain extent increase the actor's popularity and attention, which also brings them a competitive advantage in the market, and the actor is difficult to prove that the above indirect profit does not exist.

(III) Content Downloaded for Free on the Internet Does Not Mean It Can Be Used Arbitrarily

In reality, many companies believe that pictures and music downloaded for free on the Internet can be used for free and arbitrarily, which is completely wrong. Under normal circumstances, the author uploads his work to the website for publication, which is the author's authorization to the website. Free download only means that the author has given up a part of the copyright property rights, but it does not mean that the author fully permits any third party to use his work. According to Article 24 of the Copyright Law, the use of works enjoying copyright by others only constitutes reasonable use of copyright in the case of personal learning, research or appreciation, appropriate quotation for the introduction or commentary of a work or the explanation of a problem, and quotation for reporting current news. Fair use is a statutory exemption, that is, the situation where the copyright owner does not need to be licensed and does not need to pay any remuneration. What is different from the statutory license stipulated in Articles 25, 35(2), 42(2), and 46(2) of the Copyright Law is that the work user should still pay remuneration to the copyright owner under the statutory license. Referring to the aforementioned provisions, the act of an enterprise using other people's works to promote on the Internet platform does not fall under one of the exemptions for reasonable use or statutory license, and most enterprises, as for-profit legal persons, are more likely to be tracked, defended, and required to claim compensation by rights holders than ordinary people infringing, and the court's consideration factors will also increase in the discretion of the amount of damages.

(IV) The Safe Harbor Principle Does Not Apply to Ordinary Enterprises

According to Articles 22 and 23 of the Regulations on the Protection of the Right of Communication Through Information Networks, network service providers are only obliged to take measures such as deleting, blocking, or disconnecting links after knowing the existence of infringing acts or infringing content. If they still fail to take relevant measures in a timely manner after clearly knowing the infringing facts, they need to bear the responsibility, which is also the so-called safe harbor principle, that is, the "notice-removal" principle. In this regard, even if the enterprise indicates the words "from the Internet, infringement deleted" on the promotional copy, it cannot deny its infringement liability, because the application of the safe harbor principle is only for network service providers, and ordinary enterprises do not belong to network service providers and cannot invoke the safe harbor principle.

(I) Precautions for the Use of Materials Such as Pictures and Music

1. Try to use pictures taken, produced, or licensed by yourself, and do not directly use pictures searched from the Internet

The preferred approach to prevent infringement risks is to use pictures whose copyright belongs to oneself or for which a license to use has been obtained. Considering the cost, you can create typed pictures for repeated use to form your own picture library, or purchase picture materials on large copyright platforms, or connect with the copyright owners of commonly used picture materials to obtain a license to use and pay attention to indicating the author and source. Secondly, if you have to use online pictures, it is not recommended to directly use the original pictures downloaded from search engines or free picture libraries. You can use some editing methods to reduce the tracking efficiency of the picture platform on the pictures, such as cropping, adding text, and adjusting saturation to the original picture. Of course, this approach cannot completely get rid of the risk of infringement and must be operated with caution.

2. Before using music, retrieve the copyright background such as the author and publication time, and avoid using music with the name of a copyright company or music that is marked as requiring copyright payment on major music platforms

Before selecting suitable music, editors should pay attention to retrieving the music copyright background, including but not limited to the information of the author, performer, recorder, broadcaster, as well as the publication time, distribution company, copyright license holder, copyright owner, etc. Once it is found that the work may have copyright restrictions on use, try to avoid using it, especially music with the name of a copyright company or music that is marked as requiring copyright payment on major music platforms.

3. The risk of infringement also needs to be comprehensively judged before using other forms of materials such as fonts and text

Other forms of materials are mainly fonts and text. First of all, many fonts with aesthetic or unique shapes often belong to copyrighted works. The single characters in the font library are protected by copyright law as works of art, and the font library is protected as computer software works. Therefore, it is recommended that enterprises use common, free fonts that have entered the public domain when publishing articles. If you need to use single characters in a font library that is defined as a work, you should check in advance whether the right holder has restrictions on the scope of authorized use. As for the infringement of written works, you must pay attention to not reprinting other people's articles without their permission, and you must not copy other people's articles in large paragraphs.

4. Music, art works and other works in the public domain can be used as materials to the greatest extent

The best way to minimize the risk of infringement is to use public domain materials, that is, works whose copyright protection period has expired in accordance with Article 23 of the "Copyright Law" or have joined the CC agreement (Creative Commons license). Taking music as an example, all foreign classical music, traditional Chinese opera music, and modern pop songs whose authors have died beyond the copyright protection period are all music whose copyright protection period has expired. Joining the CC agreement means that the copyright owner voluntarily waives all or part of the copyright property rights. However, it cannot be ignored that the CC agreement has a variety of copyright combinations. Except for the CC0 agreement, other types of combinations are shared licenses with copyright restrictions, generally marked with English abbreviations, such as non-commercial use (CC-NC), attribution (CC-BY), etc. You should pay attention to the instructions on the webpage when downloading and using. For the sake of prudence, if it is not possible to determine whether it is a public domain material, it is recommended to verify it on the search website of the public domain material library before using the material.

(2) Regularly conduct self-examination of risks and handle them in a timely manner, and establish a risk accountability mechanism

In practice, the time interval between the publication time of official account texts and Douyin videos and the time when the intellectual property right holder discovers and collects evidence is often very long. It is common for one year or even three to five years to pass. For content with a high possibility of infringement, editors need to conduct self-examination and clean up in a timely manner to avoid being sued for infringement. In order to ensure the smooth progress of self-examination, companies can set up a risk accountability mechanism to stipulate self-examination cycles, matters, etc. If serious consequences are caused due to failure to conduct self-examination in accordance with regulations, the editor's personal responsibility will be investigated.

(3) Entrust the operation of official accounts, Douyin and other online platform accounts to a third party

In order to completely get rid of the infringement risk of such publicity, you can consider handing over official accounts such as official accounts and Douyin to professional third-party operations. The company only provides text content and necessary photos, videos and other materials, and other typesetting, design or editing are all completed by the third party. Because the third party has long-term experience in Internet content creation and has a rich variety of copyright licenses, it is more capable of undertaking publicity work and avoiding infringement risks. Therefore, in the process of signing the entrustment contract, both parties can agree on exemption clauses in advance, and the third party shall bear any infringement liability that arises.

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