Frontiers in Business, Economics and Management ISSN: 2766-824X | Vol. 10, No. 2, 2023 359 Study on the Judicial Application of the Short Video Platform Safe Harbour Rule Jie He Anhui University of Finance and Economics, Bengbu, 233000, China Abstract: The development of short videos has been overwhelming, bringing huge economic benefits to platforms. However, as the market sinks, the quality of short video content is more and more difficult to guarantee, and the phenomenon of copyright infringement such as video porting among users is becoming more and more serious. The safe harbour rule is the core system for determining online infringement, in addition to being a balance between the interests of right holders, platforms and users. However, in practice, right holders believe that the duty of care of platforms should be increased, so that they cannot enjoy the traffic dividend brought by short videos while using the "notice-and-takedown" procedure to easily enter the "safe harbour". On the other hand, short video platforms often refuse to assume the responsibility triggered by the uploading of infringing short videos by users on the grounds that they do not have the obligation to review the legality of the copyright. In view of the conflict of interests between the two parties, how to apply the principle of "safe harbour" to better reconcile the demands of the two parties has become a problem that needs to be solved urgently. Keywords: Short video platform, Safe harbour rule, Notice-to-delete rule. 1. Challenges Posed by The Development of Short Videos to The Application of The Safe Harbour Rule The safe harbour principle means that when the network service provider does not have actual knowledge of the existence of the infringement and does not obtain direct economic benefits through the direct infringement, if it is able to remove the infringing information content in a timely manner after receiving the notice of validity, it is not liable for the infringement. According to the purpose of the establishment of the safe harbour rule, the network service provider shall not be liable for infringement compensation for the technical services and support provided by the network service provider. With the imminent arrival of the 5G information age, the market direction of short videos may usher in a new wave of outbreaks, thus further expanding network users and traffic. However, while being optimistic about the future of the short video industry, it is also important to look squarely at its shortcomings - in terms of copyright, short video platforms will harbour potential risks of infringement. The judgement in the case of "Yunnan Insect Valley" set a new high for the amount of judicial damages awarded for film and television drama infringement in China, attracting people from all walks of life to study short video copyright infringement cases, and triggering concerns about the application of the safe haven rule to short video platforms in short video copyright infringement. Compared with traditional video websites, the difference between short video platforms is not only the length of video content, nor is it just the migration of network video from computer to mobile, but an emerging business model, which brings new challenges to the judgement of platform responsibility. The current network ecology and information technology have changed significantly from the beginning of the creation of the safe haven rule. As far as short video platforms are concerned, for the generation of content, platforms have technical support; for the release of content, platforms have the promotion mechanism; for the dissemination of content, platforms have the use of algorithmic recommendation; for some content publishers, platforms have exclusive agreements with them. The above characteristics of short video platforms make the storage space service provider liability rules applicable to video websites need to be re-examined. According to the news released by Guangzhou Internet Court, since its establishment, a total of 49,679 cases have been heard, of which the number of short video infringement cases has increased by 31.2% year-on-year, and the proportion of the safe haven rule is as high as 76.1% in terms of the defences of the short video platforms, the main contents of which include: not having received the notification from the right holder or the notification from the right holder does not constitute a qualified notification, the subjectivity is not knowing or ought to be known, and not having exercised the duty of reasonable care, etc. However, only 21.3% of the cases in which judgements have been pronounced have been upheld, highlighting the abuse of the safe harbour rule. In terms of the applicable judicial practice, the lack of a deep understanding of the safe harbour rule has led to the phenomenon of different judgements in the same case. Therefore, in order to better resolve infringement disputes on short video platforms, it is necessary to clearly regulate the conditions for the application of the safe harbour rule on short video platforms. 2. Judicial Controversy Over the Conditions of Application of The Safe Harbour Rule for Short Video Platforms Short video platform to sail into the "safe harbour", in the copyright infringement litigation does not have the relevant responsibility, must comply with the relevant legal provisions of the safe harbour rules of the prerequisites. In the judicial practice of short video platform infringement, the court on the identity of the short video platform subject nature, in the 360 determination of subjective fault standards, the duty of care and other issues, there are large differences, this paper through the short video platform copyright infringement disputes case study, in order to understand the practical operation of the relevant issues. 2.1. Analysis of the subject identity of short video platforms An accurate definition of the identity of the legal subject of the short video platform is a prerequisite for the application of the relevant legal provisions, in order to determine whether and to what extent the short video platform is liable. The concept of "network service provider" is adopted in the Civil Code and other relevant laws for the subject of the safe harbour rule, however, the above laws do not clearly define and classify the "network service provider". Meanwhile, short video platforms mainly provide services in the virtual world, and in the context of the big data era, major short video platforms are constantly developing new short video dissemination methods and games. Due to the continuous innovation of short video play, some short video platforms have not only purely provide content services, it is more to take a mixed mode of operation, in the provision of content services at the same time, but also for the user to provide platform services, access services and even product services, the specific definition of the nature of the identity of the short video platform is not easy. For example, while providing storage space, current short video platforms will also integrate and recommend their own works by uploading works to boost users' clicks and traffic. This act of integration and recommendation goes beyond the only storage space that can be provided by the network service provider, therefore, the current short video platforms, if all of them are regarded as protected by the safe haven rule, it will be difficult to determine the infringement liability of the platforms, so as to carry out reasonable regulation. In practice, the key factor in identifying the legal nature of the subject identity of the short video platform is whether the short video platform has the ability to independently identify, control and delete the infringing short videos, without analysing the users' service behaviors and the basic functions at the time of operation as a whole under this premise, thus ignoring whether the short video platform has any behaviors other than that of the identity of the network service provider and combining them with the actual situation Define the nature of its subject identity. This practice not only fails to enable fair and reasonable resolution of online copyright disputes, but also is not conducive to safeguarding the rights and interests of copyright owners. In judicial practice, due to the incomplete and imprecise understanding of the concept of "network service provider", there are cases where the concept cannot be applied differently, and they are often limited by the stereotypical impression of "subject", and do not analyse the behaviour and role played by the short-video platforms in the process in the context of the cases. It does not analyse the behaviour of the short video platform in this process and the role it plays, nor does it use the testimony of the parties as the basis for a comprehensive determination of the identity attributes of the short video platform. 2.2. Presumption of subjective fault of short video platforms The control of danger theory is from the perspective of tort jurisprudence, according to which the emergence of new technology carries a certain amount of risk, because the holders of the technology have technology that is unknown to others, so they should be responsible for this risk and should take measures to prevent the emergence of the danger, and at the same time, the closer the danger, the stronger their duty of vigilance is. Applied to the field of short video platforms, the duty of care is a criterion for determining fault and indicates a duty of prudent action or inaction. For short video platforms, they are faced with two major problems: what degree of duty of care should be assumed and what are the criteria for fulfilling and applying the duty of care. Firstly, the relevant judicial interpretations and draft amendments to the law reflect that short video platforms do not have a duty of prior review, and since short video platforms act as providers of information storage space and the main loaders of content on their platforms are the users, and short video platforms are neither the real publishers nor the real perpetrators of the act of reproduction and distribution, giving short video platforms the duty to review the content uploaded by users in advance is both Does not conform to the reality, at the same time also with the rapid spread of short video contrary to the way. Secondly, the Judicial Interpretation provides for a "higher duty of care", but this is an ambiguous direction of judgement, which is not conducive to the realization of the safe harbour rule which requires the protection of copyright owners on the one hand, and the original intention of the development of the industry on the other. In judicial practice, the specific content of the duty of care is often different from case to case, this paper to "poly law cases" and "Belinda law treasure" as a case retrieval tool, found in judicial practice there is a duty of care in the determination of the obligation to pay attention to the lack of specific standards, the determination of the relevant factors of the standard is not uniform. In judicial practice, there is no specific standard for determining the duty of care, and the standard for determining the relevant factors is not uniform. The court's determination of the duty of care of the short video platform also referred to the legality of the infringing work itself, its popularity and attention, the platform's information management ability, and whether there was substantial contact. This also shows that the duty of care of short video platforms in specific cases, although not explicitly stipulated, has been increased by the courts under actual cases, resulting in greater flexibility and difficulty in defining the boundaries of the duty of care, thus affecting the balance of interests in judicial trials and the predictability of the law. 3. Judicial Disputes Over the Application of the "Notice-and- takedown" Phase of The Safe Harbour for Short Video Platforms The safe harbour rule is of great significance in determining whether there is copyright infringement on short video platforms, of which "notice-to-delete" is the core. China's laws have more provisions related to it, but a careful reading reveals that these statutes are only a general principle, and there are no detailed operating procedures and implementation details, which increases the difficulty of judicial practice. At the same time, due to the continuous development of legal science and technology, the courts have found the timeliness of the relevant measures, the conditions for qualified notification, and reasonable measures to be widely divergent in judicial practice. 361 3.1. Analysis of the timeliness of "just in time" Although the Civil Code incorporates the concept of "reasonable period of time" in dealing with online infringement, the "reasonable period of time" remains flexible. As far as the statute of limitations for dealing with copyright infringement is concerned, the fast spreading and time- sensitive nature of short videos makes their value mainly manifested in the days or even hours after they are released. Take Jitterbug for example, some excellent short videos, with the help of big data, can soon become popular short videos. In general, short video platforms can only provide reporting channels, but do not require the time to deal with infringement reports. According to the provisions of the safe haven rule, the platform's deletion speed can not keep up with the spread of the infringed short video, and its loss can never be recovered after the heat of the episode has passed. Regarding the statute of limitations on the processing of "notices", China's current legislation has not made clear provisions on this issue, and thus in practice there are divergent views on different modes of infringement. For example, in the case of "I want to say to you", the defendant Baidu Online received a written letter of complaint from the plaintiff Beijing Astronomic on 7 September 2018, and since the video was taken down from the platform only four days later, the court found that the defendant Baidu Online was "timely". "Remove the allegedly infringing short video; and in the case of the giant video film and Beijing glance technology, from the defendant received the notice of infringement to take measures, a total of 7 minutes, the court found that it did not take effective remedial measures in a timely manner, should be liable for infringement. It can be seen that in specific cases, due to the discretionary power of the judge in the scope of "timely" and whether it is within a "reasonable period of time", it is very easy for disputes to arise in the judicial decision-making. However, if the processing speed of the notification is increased, the problem of erroneous deletion and deletion will be encountered, and a large number of malicious notices and unfair competition will emerge. However, if the speed of processing notices is increased, there will be problems of mistaken deletion and wrong deletion, and a large number of malicious notices and unfair competition. 3.2. Determination of what constitutes a "qualifying notice" In short video infringement disputes, both parties will usually defend on the basis of whether it constitutes a "qualified notice", but the court's decision on whether the plot is a "qualified notice" is very different. Firstly, different short video platforms publish different forms of notices, and the effectiveness of different contents and methods is not uniform in judicial practice. According to Article 13 of the Judicial Interpretation of the Right to Network Dissemination of Information, there are different opinions on whether the "formal elements" or the "substantive elements" should prevail. The most controversial issues are whether "qualified notice" should include the link and address of the work, and whether the right holder should be limited to notification through the official channels of the ISP. Regarding whether the "qualified notice" needs to include the address and link of a specific short video work, no consensus has been formed in China's judicial practice. In the case of Beijing Shutter and Guangzhou Joshua, the defendant, Joshua, found that the notice did not constitute a "valid notice" because it did not mention the video and its link address; similarly, in the civil judgement of the first instance between Byte Dance and Aqiyi, the question of whether the "notice" was "qualified" also aroused controversy. Similarly, in the civil judgement of the first instance between Byte Dance and LoveQiyi, whether the "notice" was qualified was also debated. LoveQiyi sent a warning letter to the plaintiff as a notice, which did not contain any detailed link to the video or any copyright statement, and therefore the warning letter did not constitute a "valid notice". Although each of these companies challenged the plaintiff's notice as ineligible, the court did not make a determination as to whether the requirements for an eligible notice had been met. For example, in the civil judgement of the first instance between Youku and Migu Video, Migu Video objected to the plaintiff's valid notice, claiming that it did not contain any proof of rights and did not provide information such as a request to take down the video, which prevented the plaintiff from processing the notice, but the court ultimately ruled that it constituted a "valid notice". It can be seen that, on the question of whether a "qualified notice" includes the address of a link to a particular short video, as there are different positioning methods in practice, the courts are divided on whether to take it as a factor in determining whether the conditions for notice are met. 3.3. Definition of reasonable measures The provision on "reasonable measures" in the Civil Code still follows the previous rules and does not discuss the application of "deletion, blocking, disconnection, etc." in different situations, which leads to disputes when analysing whether short video platforms have taken "reasonable measures". This has led to disputes when analysing whether short video platforms have taken "reasonable measures". Short video platforms deal with copyright infringement notices in a simple and brutal way, in order to avoid disputes and improve processing efficiency, they often adopt the same deletion, blocking and other practices, while ignoring the reasonableness of the measures, and most of them are considered to have taken "reasonable measures" as long as they have taken deletion, but not without taking into account factors such as the response time, economic loss, and attitude towards infringement. The so-called "reasonable measures" are not without consideration of factors such as response time, economic loss, and attitude towards infringement. The so- called "reasonable measures" should take into account the nature of the copyright infringement, the particular circumstances and the level of technology, etc., and the diversity of reasonable measures should not be ignored in favour of the most stringent measure, i.e. deletion. 4. Suggestions for Improving the Legal Application of the Safe Harbour Rule for Short Video Platforms Due to the development of information technology, the continuous evolution of the business model of short video platforms has led to numerous copyright infringements on the platforms. However, we can make a reasonable balance of interests and responsibilities among copyright holders, short video platforms and users of the platforms through the scientific design of the system, so as to achieve a more effective protection of the copyright of short video platforms. 362 The above article clarifies the problems in the operation of the safe harbour rule and the existing provisions that do not match the modernisation process and the form of infringement in the face of the modernisation process, and the next step is to modernise it and embark on a feasible path. While actively playing the due value of the safe harbour rules, it is also necessary to make up for the difference with the modern level of technological development through the design of the relevant rules. 4.1. Harmonisation of the legal conditions for the application of the safe haven rule 4.1.1. Clarifying the subject matter of the safe harbour rule Whether the subject is qualified is the premise and foundation of whether the short video platform can enter the "safe harbour", therefore, in practice, the determination of the subject directly determines whether it can be exempted from liability because it meets the conditions of the safe harbour rules. Therefore, the subject of the application of the safe harbour rule in China should further clarify the scope, so that the new short video platform involved in infringement is qualified to enter the "safe harbour". In the intelligent era of rapid development of science and technology, the business model of the platform is also advancing with the times, and the mode of operation is also showing a diversified tendency, so the law must grasp the differences between different network service providers, and for the more comprehensive short video platforms, it can be divided into different types, and stipulate the conditions they need to satisfy to enter into the "safe harbour" respectively. For the more comprehensive short video platforms, they can be divided into different types and the conditions they need to fulfil to enter the "safe harbour" can be stipulated separately. That is to say, not only to examine one of the functions of the network service provider, at the same time to pay attention to its function in the provision of network services whether there is a superposition of the situation, can not be assumed because of the multiple roles and functions of the main body of a specific case to affect the determination of the judgement of responsibility, should be specifically analysed in the copyright infringement of the role played by the role of the provider of the service and the way to provide the service. Therefore, if the safe harbour rule wants to really play a function in the field of short video copyright infringement, it is necessary to deepen the understanding of the operation mode of the short video platform, but it is also necessary to strictly qualify the conditions of its application, tailor-made to be conducive to a better solution to the dispute of copyright infringement of the short video platform, and to adapt to the rapid development of China's short video industry. 4.1.2. Comprehensive case presumption of subjective fault of the short video platform frequency industry's rapid development. The subjective element of "knowing" mentioned in the safe harbour rule is not only a constituent element of infringement, but also a prerequisite for the application of the safe harbour rule. In order to clarify the vein of China's subjective state of determining short video platforms, the introduction of the presumption rule into the process of proving subjective fault is conducive to the solution of the dilemma of "knowing" in the judicial practice. The dilemma of "knowing". First of all, can draw on the procedural law in the presumption rule, from the relevant facts and experience, so as to achieve a high degree of probability by the court. For example, according to the relevant requirements of the qualified notice can be presumed that the short video platform has subjective fault, secondly, the judge has the discretion, in the face of the ever- changing short video copyright infringement, should be from different infringement to find out can be used as a presumption of factual basis of life, and timely to summarise; has been formed in the presumption of the rules, can be the most recent results of the judicial advice through the transmission of the legislature, in order to provide a sufficient practical basis for the future legislation. Future legislation to provide a sufficient basis for practice. The theoretical community should change the focus of the discussion, not only stay in the "know" system of argumentation, but also strive to improve the system. In short video copyright infringement cases, many cases cannot directly prove the subjective fault of the short video platform, so judges have to start from the trivial facts of the case, and piece together the details to make an acceptable judgement. Scholars should focus on the various facts mentioned in the trial, such as: the platform's business model, the platform's revenue composition, the manifestation of infringement, and so on, so as to provide a theoretical basis for the judge's trial procedure. As a final point, the presumption rule should be confirmed from a legal point of view, and by combining it with the guiding cases of the Supreme Court, its guiding role can be better utilised; a special judicial interpretation can also be formulated to make it a unified standard for judgement, so as to avoid the phenomenon of different judgements for the same case. 4.2. Standardise the operating rules for the "notify-delete" phase 4.2.1. Consideration of "reasonable period of time" from multiple perspectives With regard to the issue of copyright infringement by short video platforms, setting a reasonable time limit standard can strengthen the protection of short video copyright. The short video platform should take necessary actions within a reasonable time limit after receiving the notice from the copyright owner, but the reasonable time limit in the relevant law only plays a suggestive role. However, the reasonable time limit should be weighed from the perspective of copyright owners, users and platforms, and the time limit should be reasonable and reasonable, because too long or too short a time limit will cause some trouble in dealing with infringement. The prerequisite for judging whether a short video platform has taken the necessary response measures in a "timely manner" is that there is a reasonable period of time for the short video platform to take corresponding measures, and that the short video platform is able to make a judgement without any delay and in line with the reasonable tolerance limit of the right holders, which has to be taken into account in the light of the actual situation of different cases, taking into account the nature of the case, legal and economic factors, etc., and should not be determined on a case-by-case basis. and economic factors, etc., and must not be generalised. Because it is difficult for the law to make a clear segmentation for a reasonable period of time, it is more important for judges to follow the principles of necessity and proportionality when deciding. As many relevant episodes in different cases are very different from each other, it is difficult to abstract and summarise them, and the determination of "timely" timeliness must be a consensus reached between the 363 right owner and the short video platform. Based on this, it can be considered from the perspective of copyright holders and platform users: from the perspective of short-video authors, if the platform harbours a high risk of infringement, authors should be given more ways to give urgent notification, so as to shorten the time to react to the infringement; from the perspective of short-video platforms, by granting the platforms the autonomy to decide on the right of infringement, the platforms can choose the appropriate and reasonable period of time according to the reality without rigidity or even flexibility, which can maximise the protection of copyright holders and ensure that the copyright holders can be protected. This can maximise the protection of the rights and interests of copyright holders, and also prevent irreparable losses caused by false notifications. 4.2.2. Improving the operational elements of a "qualifying notice" As the core content of the safe harbour rule, the ultimate goal of "notice" is to protect the legal rights of short video copyright owners, while at the same time ensuring that the short video platform's liability does not exceed its own ability to bear. Therefore, it is necessary to improve the element of "qualified notice". First, short video platforms should be supported to establish effective complaint channels, such as increasing the user reporting functions of different platforms and opening up contact persons for customer service and other convenient services, so as to deal with emergencies in a timely manner; second, in order to regulate false notifications in the name of the right owner or agent, the quality of the notification should be controlled from the source, so as to facilitate the effective resolution of copyright infringement disputes between copyright holders and users of the platforms; furthermore, in order to avoid the proliferation of malicious notifications, the quality of notifications should be controlled from the source. avoid the proliferation of malicious notices, a blacklist of platform users should be established, and they should be punished accordingly and put on the blacklist.In conclusion, as each short video platform has its own characteristics, the formulation of the "qualifying notice" should be adapted to the actual situation of the platform, taking into account different business models, technological means and feasibility and other factors, and targeting at different types of short video copyright infringement, in order to better improve the "qualifying notice" form requirements. The purpose of the "Qualified Notice" is to better improve the formal requirements. At the same time, the platform should also formally publicise the relevant provisions, so that they can serve as a reference for platform users and copyright owners in their platform-related activities.This will not only improve the quality of "notices", but also deter abusive notices, reduce the screening time for "wrong notices", and prevent losses and legal risks arising from "non-conforming notices". 4.2.3. Reasonable measures follow the principle of proportionality In practice, the nature of the infringing video, the specific circumstances and the technical level of the platform itself to determine whether it is a "reasonable measure", the more open the content dissemination on the short video platform, based on the degree of supervision of its services and specific authority, the more should strengthen the infringement prevention, the more accurate the "reasonable measures" required. The more open the content dissemination on the short video platform is, the more it should strengthen the prevention of infringement based on the degree of supervision and specific authority of the service, and the higher the requirement for the accuracy of "reasonable measures". Depending on the severity of the infringement of the short video complaints, reasonable warnings or even take down the short video links and other hierarchical measures can be taken. If the infringing content in a short video is only a small part of it and there is reasonable use of other content, complete removal or taking down of the link may be too harsh for users and may cause incalculable losses, so measures such as warnings or referrals to notices may be taken, which may also give platform users the opportunity to complain. At the same time, the notification should be regarded as a reasonable measure taken by the short video platform; for repeated infringement of the platform user, the "reasonable measure" of direct withdrawal of the link can be taken, and strict precautionary measures can be taken to prevent them from uploading the short video again. In general, deleting links to short videos is not mandatory, and if link deletion measures are taken across the board, the rights and interests of infringers will be over-emphasised, while the interests of both short video platforms and users will be neglected, and measures should be taken in accordance with the principle of proportionality. 5. Conclusion Short video platforms should not mechanically apply the safe harbour rule, which lacks detailed provisions and standards, in judicial decisions in the field of copyright infringement, but should take the theory of balance of interests as an entry point to take into account the interests of the right holders, the short video platforms and the network users, while recognising the cooperative orientation of the safe harbour rule. From the perspective of the current judicial practice of copyright infringement on short video platforms, the legislative status of the safe harbour rule is considered with short video platform infringement as the entry point. At the stage of the applicable conditions of the safe harbour rules, due to the business model that advances with the times, its operation mode also presents a diversified tendency, accurately defines the identity nature of the short video platform, to carry out a specific analysis of its role in the infringement, the role it plays and the services it provides, to introduce an objectivised presumptive standard in the process of proving the subjective state of the short video platform, and to encourage the platform to strengthen its technological measures to prevent the the occurrence of copyright infringement. In order to reduce the loss of profits, it is possible to set "prior notice" as a pre-litigation procedure, and at the same time improve the quality of notification, consider "reasonable measures" under the principle of proportionality, and analyse substantive, legal and economic factors on a case- by-case basis. 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