WILMAP: China

[For the Hong Kong Special Administrative Region of the People's Republic of China see here]

LEGISLATION

 
[These industrial standards define ISPs into three categories: original service/connection provider, information provider and processor, and third party intermediaries who do not link to users' personal information directly. These standards preliminarily put obligations on ISPs when collecting, processing, using, storaging, and transmitting users' personal information such as name, address, date of birth, etc.]
 
Regulation on Protection of the Right to Network Dissemination of InformationState Council Order No. 468, May 18, 2006, amended in accordance with the Decision of the State Council on Amending the Regulation on Protection of the Right to Network Dissemination of Information on January 30, 2013
 
[Clarifying the "Fair Use" Exception under the PRC Copyright Law (article 6), standards of network dissemination of information including how to address a potential violation.  Establishing a more stringent standard for continued violators including civil and criminal liabilities for illegal network distributions and cyber equipment associated with such distributions/disseminations.]
 
Decision of the Standing Committee of the National People's Congress on Strengthening the Protection of Online Information, December 28, 2012 [English Version
 
[Imposing further regulations on ISPs and business enterprises, and non-profits to handle electronic personal information including: (1) stating explicitly the purpose, means and scope of such personal information collection and usage, (2) publicizing widely relevant policies and obtain consent of such collection, (3) prohibiting disclosure, alteration, selling, or destruction of collected electronic personal information, (4) adopting technical and other necessary measures to ensure the safety of electronic personal information, and must promptly take remedial measures when such information is disclosed, damaged or lost, (5) promptly taking any remedial measures if anything of the above occurs, (6) and requiring ISPs to mandate users to furnish authentic identity information when providing access or information related services to the users.]
 
 
[This Judicial Interpretation provides the detailed rules on deciding Internet intermediary’s liability for copyright infringement.
 
(1) First, whether an Internet intermediary ought to be liable mainly depends whether it is at fault for the copyright infringement in question. In light of Article 8, the fault means Internet intermediaries actually know or should know the copyright infringement concerned.
 
(2) Second, the Judicial Interpretation (Article 8) clarifies that Internet intermediaries have no obligation to actively monitor their services, and if they have already taken reasonable and effective technical measures but still could not know the infringement, they should not be held as being at fault.
 
(3) Third, regarding what constitutes “should know”, the Judicial Interpretation (Article 9, 10 and 12) enumerates several factors for lower courts to comprehensively assess when deciding Internet Intermediaries’ liability.
 
(4) Fourth, with regard to the benefits made by Internet intermediaries, the Judicial Interpretation differentiates between direct benefits and indirect benefits (Article 11). If an Internet intermediary receive direct benefits from infringing materials, it ought to undertake higher level of duty of care to its user’ conducts.
 
(5) Fifth, regarding notice-and-takedown procedure, the Judicial Interpretation lists several factors for lower courts to decide what constitutes “expeditiously remove” (Article 14).
 
(6) Sixth, the Judicial Interpretation brings in inducement infringement. According to Article 7, where an Internet intermediary induces or encourages Internet users to infringe others’ copyright by delivering words, offering technical support, or rewarding credits, it shall be concluded to have committed inducing infringements.]
 
Intangible Cultural Heritage Law, February 25, 2011 [English Version with Automatic Translation Tool
 
[Focusing on the distortion of expressions of intangible forms of Chinese cultural heritage.]
 
Decision of the Standing Committee of the National People’s Congress on Amending the Copyright Law of the People’s Republic of China, February 26, 2010 [English Version]
 
[Explaining that copyright holders must not exert their rights against the PRC constitution and that the pledger and the pledgee of the copyright application must abide by the State Council regulations and guidelines.]
 
 
[Requiring Internet information providers (ISPs) to obtain approval from the Ministry of Information Industry before creating any sort of joint venture with a foreign company and associated creation of any ISP services. (Article 6-8). ISPs are also required to keep records of the log-on time of users, user’s accounts and the telephone number from which users dial in for 60 days and provide them to State authorities on demand.]
 
Interim Regulations on International Interconnection of Computer Networks in the People's Republic of China, State Council Order No.195, February 1, 1996, amended on May 20, 1997
 
[Forbidding the use of internet to harm national security, disclose state secrets, damage national interests endanger social stability, or produce/distribute/consumer pornographic information."]
 
Copyright Law of the People's Republic of China, September 7, 1990 [English Version with Automatic Translation Tool]
 
Trademark Law of the People’s Republic of China, August 23, 1982 [English Version]

BILLS AND PENDING PROPOSALS

[There are currently no known new legislative proposals on the issue of intermediary liability.] 

DECISIONS

Superior Courts

 
Beijing Higher People’s Court [北京市高级人民法院], Zhong Qin Wen v. Baidu [中青文v.百度], 2014 Gao Min Zhong Zi No. 2045, [(2014)高民终字第2045号], 2014
[copyright, hosting provider, BaiduWenku, 
 
[(1) In this case, the plaintiff Zhong Qin Wen found some of its copyrighted works made available on the platform BaiduWenku and sued Baidu for copyright infringement. Baidu claimed that BaiduWenku was just a platform for Internet users to upload and share materials, and it had fulfill reasonable duty of care to prevent infringement on its platform, so it should not be held liable.  
 
(2) The Beijing First Intermediate People’s Court held that Baidu was incapable of monitoring all uploads and did not directly benefit from infringement, but should know the infringing uploads in question.  According to the decision, the defendant Baidu kept the viewing and downloading data of each uploaded work. By using current technologies, it was reasonable for Baidu to execute a monitoring mechanism in light of which, once an uploaded work has been viewed or downloaded more than certain times, Baidu needs to inspect the potential copyright status of the work by contacting the uploader, checking whether the work is originally created by the uploader or legally authorized by the copyright owners. In this case, the plaintiff’s works had been viewed by a high volume of users. However, Baidu failed to exercise its duty to examine the legal status of the plaintiff’s works and should have known that the plaintiff’s works were illegally uploaded.  
 
(3) On appeal, Beijing Higher People’s Court upheld the previous decision.  This case sets a duty for Internet hosting providers to protect popular works. Because once a copy of a popular work is uploaded on a platform, it tends to attract many views and downloads. However, both Beijing First Immediate People’s Court and Beijing Higher People’s Court did not set a clear indication on deciding how many times of views or downloads are enough to trigger the examining duty, which puts hosting providers' liability in uncertainty.
 
Beijing High Court, Go East Entertainment Co. Ltd. (H.K.) v. Beijing Alibaba Technology Co., Ltd., (2007) Er Zhong Min Chu Zi No. 02627, December 20, 2007
[copyright, music, domain, defenses, search engine]
 
[Court held that defendant search engine Alibaba is liable for taking down 15 of the 26 allegedly infringing recording in accordance with the take-down notices.  Although Alibaba claims that it removed all 15 links that the Plaintiff sent them in regards to the take-down, the Court held that Alibaba should know that its 26 recordings are infringing Plaintiff’s copyright and thus Alibaba is negligent in discharging its duty to take steps to terminate the links to all 26 recordings.]
 
Beijing District High Court , EMI Group Hong Kong Limited v. Beijing Baidu Network Technology Co. Ltd., (2007) Gao Min Zhong Zi No. 593, November 17, 2006
[Search engine, copyright, streaming, music, domain, defenses]
 
[Court rejected EMI’s claim against the search engine Baidu because EMI’s take-down notice to Baidu did not comply with the requisite formalities, and thus failed to specify the names of the works, their authors and the web addresses whose the infringing works were found. The Court cited Article 8, Paragraph 1 of the Interpretations of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Copyright Disputes over Computer Network (2004): “Where any copyright owner who, upon finding out the infringing information, warns the Internet service provider about this or requests for the network registration material of the infringer, [but] is unable to produce proofs of his [the copyright owner’s] identification, ownership of the copyright and the circumstance of the infringement, such warning or request shall be deemed not to have been made.”]
 

Lower Courts

Beijing Chaoyang District Court (北京市朝阳区人民法院), Chineseall.com v. 178.com [北京中文在线v.北京智珠网络技术], (2013) Chao Min Chu Zi No. 8854 [朝民初字第8854号], December 20, 2013
 
[(1) In this case, the BBS operated by the defendant “178.com” had a sub-platform for subscribers to upload ePub-formatted e-books, and a copyrighted book owned by the plaintiff had been uploaded without permission, so the plaintiff sued 178.com for copyright infringement.
 
(2) According to the court investigation, the defendant had a policy of rewarding these subscribers who uploaded content or replied to such content with virtual “silver coins”. Further, the defendant also appointed a moderator to manage the materials uploaded by subscribers. In this case, the infringing materials concerned was highlighted and edited by the moderator, so the moderator appointed by the defendant in fact promoted the transmission of infringing materials concerned. Based on the two reasons above, ChaoYang District Court in Beijing held that the defendant had induced its subscribers to commit infringements.] [See here for inclusion of this case among the 50 typical IP cases in 2013 in China]
 
No. 2 Intermediate People's Court of Beijing Municipality, Shanghai Push Sound Music & Entertainment Co., Ltd. v. Beijing FashioNow Co. Ltd., (2005) Er Zhong Min Chu Zi No. 13739, December 19, 2006
[copyright, illegal streaming, linking, freedom of the press, freedom of expression, criminal infringement, third party liability, joint or accessory liability]
 
[Holding that the Defendants, developers, and operators of the P2P website and client software “Kuro” liable under Article 130 of the General Principles of the Civil Law, in contributory infringement for intentionally providing assistance to the website users who shared and infringed the copyright holder’s right in its recordings. The Court placed a heavy emphasis on the right compilation and integration between the P2P client software and the system of selection, classification and categorization of the users’ shared recordings which the defendants operated on their website.]
 
No. 2 Intermediate People's Court of Beijing Municipality, Zhejiang FanYa Co. Ltd. (5fad.com) v. Beijing Yahoo! China & Alibaba Information Technology Co. Ltd., (2006) Er Zhong Min Chu Zi No. 07905, December 15, 2006
[copyright, secondary liability, search engine]
 
[Holding that if the right holder did not exhaust her obligations to notify an intermediary providing referring services vis-a vis take-down notices, and that there is no evidence to suggest that the intermediary knows or should know that the material he has linked to is infringing, the rightholder cannot maintain a secondary liability claim against the intermediary.]
 
No. 2 Intermediate People's Court of Beijing Municipality , Music Copyright Society of China v. Netease Com., Inc. & Mobile Communications Corp., September 20, 2002 
[copyright, illegal streaming, linking, freedom of the press, freedom of expression, criminal infringement, third party liability, joint or accessory liability]
 
[Holding that the defendant, who operated the website chinamp3.com, was not liable for disseminating the plaintiff’s sound recordings by merely linking to them, by selecting, organizing and finalizing the various links to infringing third party sources. However, because the Defendant could discriminate between licensed and unlicensed recordings, and that the Defendant ignored his duties and intentional participation in the illegal dissemination of unlicensed recordings, Defendant is jointly liable with the third party websites under Article 130 of the General Principles of the Civil Law.]
 
No. 2 Intermediate People's Court of Beijing Municipality, Music Copyright Society of China v. Netease Com., Inc. & Mobile Communications Corp., (2002) Er Zhong Min Chu No. 3119, September 20, 2002
[conduit or transmission defense, copyright, ringtone, copyright defense]
 
[Holding that because Mobile Communications were merely providing a technical and passive service of network dissemination for receiving ringtones sent by Netease and forwarding them to its subscribers, it was not liable to an infringement. The Court further considered evidence that Mobile Communications was unable to select, examine or selectively delete the contents of the messages. Therefore, Mobile Communications has no duty and not at fault for the occurrence of the infringement when Netease used Mobile Communications’ services to transmit unlicensed (copyrighted) ringtones to its subscribers.]

OTHER RESOURCES

Intellectual Property Protection in China, http://www.chinaipr.gov.cn/channel/newsindex.shtml [PRC Government’s Website]
Stanford China Guiding Cases Project, http://blogs.law.stanford.edu/cgcp
World Intellectual Property Organization (WIPO) on Chinese IP Law, http://www.wipo.int/wipolex/en/profile.jsp?code=CN
中华人民共和国国家知识产权局, http://www.sipo.gov.cn/zcfg/flfg [State Intellectual Property Office of the PRC]
中国保护知识产权网, http://www.ipr.gov.cn [Intellectual Property Protection in China]
中华人民共和国专利法, http://www.sipo.gov.cn/zcfg/flfg/zl/fljxzfg [Various Intellectual Property Legislations and Texts including those on Patents, Copyright, and Trademark]
Jei Wang, Not All ISP Conduct is Equally Active or Passive in Differing Jurisdictions: Content Liability and Safe Harbor Immunity for hosting ISPs in China, the European Union, and the United States Case Law, 37(11) Eur. Intell. Prop. Rev. (2015)

CONTRIBUTORS

Cheng-Yu Hou
Email: houcu at mail.uc.edu
 
Jie Wang

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