Research on the Determination of Copyright Infringement Liability

for Online: Taking the Copyright Protection of Digital Products of

Intangible Cultural Heritage as an Example

Ruiyao Wang

Law School and Intellectual Property School, Jinan University, Guangzhou, Guangdong, 511436, China

Keywords: Intellectual Property Law, Civil and Commercial Law, Copyright.

Abstract: The digital transformation of cultural dissemination underscores the critical importance of digitizing and

disseminating Intangible Cultural Heritage (ICH) for cultural continuity. However, the open architecture of

internet platforms substantially disrupts the equilibrium between ICH preservation and innovative

development, primarily due to pervasive copyright infringement. This study examines copyright protection

for digital ICH products, addressing challenges in identifying online copyright violations and proposing

countermeasures. Research reveals that current difficulties in copyright adjudication involve four key

dimensions: the criteria for evaluating the originality of digital ICH works, the standards for regulating online

platforms' liability for copyright infringement of digital ICH products, the costs of cross-border infringement

claim for digital ICH products, and the shortcomings in relevant technologies on online platforms within the

ICH domain. Based on this analysis, the study proposes a series of regulatory measures to address these

challenges. First, implementing typological governance strategies with a "notice-and-notice" system; Second,

establishing an integrated mechanism combining platform governance and legal regulation. Platform

governance requires comprehensive review standards aligned with digital ICH characteristics, while legal

regulation necessitates a collaborative administrative-judicial-industry oversight mechanism.

1 INTRODUCTION

Intangible Cultural Heritage (ICH), a vital cultural

resource, plays an indispensable role in advancing

cultural prosperity and development. It embodies

both historical memory and the integrated

manifestations of traditional craftsmanship, folk arts,

performing arts, and related cultural expressions.

With the advancement of digital technologies and

innovative dissemination methodologies, digital ICH

products now serve as critical conduits bridging

historical and contemporary contexts, as well as

traditional and modern paradigms. These products

offer vital means for comprehending and transmitting

the essence of traditional Chinese culture.

With the advancement of internet technology,

digital products related to ICH have gained

prominence. However, these digital derivatives face

significant infringement risks throughout their

lifecycle—from creation to commercialization.

Existing research indicates that intellectual property

violations on e-commerce platforms are

predominantly copyright-related; empirical data

reveals that copyright infringement constitutes

63.41% of such cases. ICH digital products, typically

manifested as textual, visual, or audio-visual formats,

exhibit particularly acute copyright vulnerabilities

(Bi, 2024). Consequently, balancing ICH's status as

public cultural resources against the proprietary

nature of their digital derivatives constitutes a critical

issue requiring resolution across academic and

practical domains.

This study takes the copyright protection of digital

products of ICH as an entry point, aiming to deepen

the understanding of the current copyright protection

dilemma faced in the process of digitizing intangible

cultural heritage, to deconstruct the creation chain

and the relationship between rights and

responsibilities of digital products of intangible

cultural heritage through further analysis of existing

research, and to explore the protection paradigm of

digital products of intangible cultural heritage that is

more closely related to the actual situation in China.

This paper focuses on two central issues: the

Wang, R.

Research on the Determination of Copyright Infringement Liability for Online: Taking the Copyright Protection of Digital Products of Intangible Cultural Heritage as an Example.

DOI: 10.5220/0014359800004859

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st International Conference on Politics, Law, and Social Science (ICPLSS 2025), pages 221-225

ISBN: 978-989-758-785-6

221

identification of copyright infringement in digital

products of intangible cultural heritage by online

platforms, and the regulatory framework for

managing such infringement.

This study investigates the intersection of ICH

digital products and copyright law, providing

analytical frameworks to support legally compliant

development within the ICH digitalization sector. The

research aims to facilitate the dual imperatives of

cultural preservation and industrial innovation,

thereby contributing to the creative transformation of

China's distinguished traditional cultural heritage.

2 THE DILEMMA OF

DETERMINING COPYRIGHT

INFRINGEMENT OF ICH

DIGITAL PRODUCTS BY

ONLINE PLATFORMS

2.1 Certain Differences in the Criteria

for Determining the Originality of

Digitized ICH Works

Originality constitutes a fundamental prerequisite for

2021). According to the “Professional Standards for

Digital Preservation of Intangible Cultural Heritage”,

“Digital Resource Acquisition and Recording for

Digital Preservation of Intangible Cultural Heritage”,

Qin Yuxiang categorizes the difference in

heterogeneity of the content of digital products of

ICH can be divided into “recording”, “processing”,

“optimization” and “reorganization” from low to

high. Among them, the results of the “recording”

level are only a simple copy of the non-heritage and

lack originality. Conversely, “processing” and

higher-level derivatives demonstrate progressively

stronger originality due to substantive creative inputs

and artistic reinterpretation (Qin, 2023). The current

legislative frameworks, however, lack specific

criteria for determining originality in ICH digital

derivatives, resulting in inconsistent adjudication

standards within judicial practice.

Contemporary scholarship reveals significant

divergence regarding originality determination for

expressions within digital works of ICH. A

conceptual dichotomy exists: one posits that a digital

work's expression of the creator's individual

personality suffices, while the other requires a certain

level of creative achievement for the work to be

recognized as a digital work (Li & Gu, 2021).

At present, the former is the mainstream view in

the academic circle. Li Jinbao and Gu Liping pointed

out in their article that with the development of the

cultural industry, the originality standard of works

has shifted from “forehead sweat standard” to

“minimum standard” and “small coin standard”,

emphasizing that the standard for determining the

originality of ICH digital works should not be too

high (Li & Gu, 2021). They use short videos with ICH

content as an example, demonstrating that derivatives

exhibiting mere replication or simplistic adaptation of

traditional elements constitute unprotected

"productions" rather than copyrightable "works" due

to insufficient creative individuation. In Li Chen’s

research, he disputes the argument that "audiovisual

works require a high degree of originality," arguing

that digital works promoted through new forms of

dissemination, such as short videos, should adhere to

the fundamental principles of the Copyright Law to

ensure proper protection (Li, 2019). This viewpoint

was vividly illustrated in the case of Beijing Kuai

Shou Technology Co., Ltd. v. Guangzhou Hua duo

Network Technology Co., Ltd. regarding copyright

infringement. The judgment stated that "according to

the relevant provisions of the Copyright Law, as long

as a work is independently created by the author and

reflects some degree of selection, arrangement,

design, and other personality, it should be considered

original; and this originality is a minimum level of

creativity" (Wu, 2023).

After consolidating the above research results of

scholars and observing the trend of practical

operation in the industry, it can be found that the

criterion of ‘a digital work can be regarded as having

originality as long as it can embody the creator's

unique personalized expression’ has become the

mainstream principle of judgement within the current

legal framework. The establishment of this criterion

not only expands the scope of digital products

covered by the Copyright Law to a reasonable but not

excessive range, but also enables the digital content

of a large number of traditional intangible cultural

heritage to be included in the legal regulatory system.

This approach facilitates unrestricted circulation of

innovative ICH derivatives. It circumvents creativity-

constraining effects of excessive originality

thresholds, such as stifling creative thought and

expression, thereby achieving concurrent objectives

of safeguarding creator rights while establishing

institutional legal safeguards for ICH preservation

and innovation.

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2.2 Unclear Standards for Regulating

the Tort Liability of Network

Platforms for ICH Digital Products

In this digital age, the proliferation and development

of cultural works cannot be achieved without the

support of various means of communication. Online

platforms function not merely as information-

exchange tools but as critical infrastructure for

preserving and transmitting ICH in digital form.

However, platform architectures inherently engender

attribution complexities during widespread ICH

digital dissemination. Article 1195 of the Civil Code

stipulates that “where a network user commits an

infringement by using network services, the right

holder is entitled to notify the network service

provider to take necessary measures such as deleting,

blocking, or disconnecting links. If the network

service provider fails to take necessary measures in a

timely manner after receiving the notification, it shall

bear joint and several liability with the network user

for the expanded part of the damage.” Based on the

“safe harbor rule”, network platforms are often able

to avoid infringement liability by simply assuming

the obligation of ‘notification and deletion’ in case of

infringement. Article 1197 states that “where a

network service provider knows or should have

known that a network user is infringing upon the civil

rights and interests of others by using its network

services, and fails to take necessary measures, it shall

bear joint and several liability with the network user.”

In this regard, Ding Xiaodong argues that the

determination of fault for infringement by online

platforms should not be based solely on whether they

knew about indirect infringement in individual cases,

but rather on whether they have fulfilled a reasonable

duty of care for large-scale governance (Anon., 2017

& Ding, 2025). Platforms should employ algorithmic

monitoring and technical measures to reduce

infringing content.

2.3 Difficulty in Defending

Transnational Copyright

Infringement of Digitized ICH

Products

After an in-depth comparison of Chinese and foreign

digital copyright regimes, Huang Xianrong and Li

Jingjing found that globally different countries have

their own regulations on digital protection and

dissemination of intangible cultural heritage, and that

there are often significant differences in the specific

details of this area. These discrepancies, particularly

in the specifics of legal frameworks, present

considerable challenges for cross-border

enforcement. For instance, the Directive on

“notice and takedown” approach for platforms

addressing repeat infringements, whereas the Digital

Millennium Copyright Act emphasizes “notice and

removal” (Huang & Li, 2013). Such legal disparities

elevate the costs associated with international legal

action when ICH is subject to copyright infringement.

Beyond jurisdictional divergences, the

imperfections of the international coordination

mechanism have also made it more difficult to protect

rights across borders. Prevailing international treaties

primarily address signatory states' obligations

concerning domestic and regional ICH safeguarding,

while inadequately incorporating transnational legal

protection frameworks. This gap manifests through a

lack of established platforms for dispute resolution

and arbitration concerning related intellectual

property issues, as well as the absence of mature

dispute resolution mechanisms (Lu, 2019).

2.4 Limitations in the Related

Technologies of Network Platforms

in the Field of ICH

are currently effective in curbing copyright

infringement. Existing methods primarily include

content metadata indexing, hash algorithm

recognition, and audio-video fingerprinting.

However, their application within the domain of ICH

faces significant limitations.

Regarding inherent data constraints in digital ICH

products, Chen Jinchuan pointed out that the existing

identification and filtering technologies, in order to

play their proper roles, must rely on a complete and

accurate library of licensed works, and cannot be

separated from the support and co-operation of the

right holders (Chen, 2024). Digital ICH derivatives

frequently encounter operational limitations due to

non-standardized metadata protocols during creation

and dissemination phases. The accuracy of metadata

directly impacts the efficiency of work identification

and filtering; the absence of unified standards

significantly reduces the precision of identification.

Furthermore, most digital ICH products lack formal

application challenges. Digital ICH products are often

difficult to accurately match within existing

databases, thereby hindering their precise

identification within the digital sphere (Chen, 2024).

Research on the Determination of Copyright Infringement Liability for Online: Taking the Copyright Protection of Digital Products of

Intangible Cultural Heritage as an Example

223

In addition to the data limitations imposed by the

characteristics of non-digital products, identification

and filtering technologies exhibit fundamental

operational deficiencies due to absent “legal

adjudicative capabilities”. Identification and filtering

technology can only make judgments based on the

existing facts, but does not have the ability to analyze

and assess legal issues, making it difficult to

accurately determine whether a work constitutes an

infringement, which leads to the application dilemma

of mistakenly deleting, mistakenly blocking, and

mistakenly filtering. In response to this dilemma, Li

Yang further pointed out that algorithmic

recommendation systems generate hyper-

personalized interfaces (“one-thousand-users, one-

thousand-interfaces”), and the diffusion path of the

non-legacy digital products is highly hidden in the

algorithmic APP, and the non-legacy digital products

may be personalized through the “thousand people

with thousands of faces” recommendation, and

“notification’ of ‘thousands of people” for diffusion.

The diffusion path of non-legacy digital products is

highly hidden in the algorithmic APP, and non-legacy

digital products may diffuse through the personalized

recommendation of “thousands of people”, and the

“notification of deletion” rule has a high cost of relief

(Li, 2020).

3 REGULATORY MEASURES

FOR COPYRIGHT

INFRINGEMENT OF

INTANGIBLE CULTURAL

HERITAGE DIGITAL

PRODUCTS ON ONLINE

PLATFORMS

3.1 Promote the Construction of Typed

Governance and the "Notice +

Notice" Relief Channel

In March 2019, the European Parliament adopted

Article 17 of the Directive on Copyright in the Digital

Single Market, amending the E-Commerce Directive,

stipulating that online content-sharing service

providers must secure authorization from copyright

holders; otherwise, their service provision constitutes

an act of communication to the public or making

available to the public (Anon., 2000). This framework

mandates platforms to exert their “best efforts” to

prevent the dissemination of infringing content,

thereby imposing significant organizational demands

on ICH management. On the contrary, the

disaggregated nature of ICH rights holders in China

and the inadequate safeguarding of numerous

projects, which often lack effective coordination

mechanisms, preclude the direct adoption of

established models from the EU and other

jurisdictions (Lu, 2023). Consequently, the design

and implementation of differentiated, typological

governance rules are crucial, considering the specific

characteristics of digitized ICH products. For

instance, a higher standard of protection should be

applied to digitized ICH products with commercial

secret attributes, while reasonable use within a

limited scope should be permitted for digitized ICH

products with strong public attributes.

The “notice and takedown” rule was introduced in

the United States during the 1990s, an era

characterized predominantly by media-centric

content distribution. However, China's current

internet industry is characterized by algorithm-driven

distribution, spearheaded by artificial intelligence.

This significant paradigm shift has rendered the

traditional “notice and takedown” framework

increasingly less applicable in this context. To

address this gap, Li Yang proposes the addition of a

“notice + notice” provision within the framework of

online copyright remedies. This proposed mechanism

mandates that upon receiving a notice of

infringement, online platforms not only forward the

notice to the alleged infringer but also implement

technical measures to directly relay the identified

infringing content to the rights holder, refraining from

immediate removal. This approach allows rights

holders to seek redress through “notice + notice”

when the “notice and takedown” mechanism proves

ineffective (Li, 2020).

3.2 Combination of Platform

Governance and Legal Regulation

Sole reliance on a single intervention mechanism

proves inadequate for effectively safeguarding the

legitimate rights and interests of copyright holders in

the protection of ICH digital products. A

comprehensive governance model must therefore be

established, integrating enhanced platform self-

regulation with timely public authority intervention to

generate synergistic effects. Through the construction

of this model, the all-round protection of the

realized. Regarding platform governance, Bi

Wenxuan pointed out that e-commerce platforms

should adopt a review standard combining “formal

examination + substantive review excluding obvious

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infringement” (Bi, 2024). Furthermore, platforms are

supposed to leverage their technological advantages

to establish specialized ICH content review systems,

incorporating third-party expert committees for

substantive examination. In terms of legal oversight,

collaborative governance between judicial and

administrative entities should be strengthened by

establishing an “administrative-judicial-industry”

collaborative mechanism. This entails creating a

blockchain-based joint dispute resolution system

involving courts and copyright administrative

agencies, while capitalizing on the geographical

concentration of network industry clusters and ICH-

producing regions to develop diversified dispute

resolution mechanisms (Beijing Internet Court

Research Group, 2023).

4 CONCLUSION

The digital transformation of ICH constitutes a

pivotal impetus for cultural preservation and

innovation. Paradoxically, the pervasive adoption of

digital technologies has concurrently precipitated

widespread infringement within digital ecosystems,

emerging as a significant impediment to the

sustainable development of ICH.

On the one hand, from a legal perspective,

infringement relating to digitized products of ICH on

online platforms not only infringes on the rights and

interests of individual creators, but also seriously

challenges the respect and protection of collective

cultural identity. The inherently communal nature of

ICH determines the importance of its collective

rights, which conflict with the individualistic logic of

traditional intellectual property law. On the other

hand, technological governance mechanisms

inherently suffer from a lack of cultural

appropriateness, which impedes their capacity to

establish an operational equilibrium that effectively

mitigates infringement while preserving the living

legacy of cultural practices.

Existing governance approaches have employed

diverse strategies—including platform self-

regulation, legal framework optimization, and

technology-enabled governance—to address

prevailing challenges. Nevertheless, persistent

limitations remain, such as over-emphasizing the

protection of individual rights to the neglect of the

public cultural values carried by ICH, as well as

ignoring the living and regional characteristics of

ICH. Future research should therefore establish an

equilibrium between safeguarding ICH and enabling

innovative dissemination, thereby pioneering digital

pathways for the continuity of traditional cultural

practices.

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Research on the Determination of Copyright Infringement Liability for Online: Taking the Copyright Protection of Digital Products of

Intangible Cultural Heritage as an Example

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