Review and Prospect of Judicial Protection of Network Copyright in China

By Dr. Jiang Zhipei,[Copyright]

  Supplemental liability is a form of liability where the primary obligator is insufficient to repay all the debts in full, the secondary obligator will bear the supplemental liability for repayment of the shortfall.
  Since mid-1990s, Chinese Internet information industry has been developing rapidly, which brings new opportunities to copyright business, and new challenges to copyright legal protection. I was a senior judge at IP tribunal of the Supreme People’s Court of China in 1990s, and since my retirement in 2008, I have been engaged in IP laws teaching and service, constantly focusing on and practicing the application of network copyright laws and has witnessed the establishment, (theoretical and practical) transformation and improvement of law protection for network copyright in China.
  Legal Evolution: Three Revisions of Judicial Interpretations by the Supreme People’s Court of China
  Nowadays, it is unquestioned that online use of works/products is an act of using. However, there were lots of network copyright litigations in late 1990s, mainly because the Copyright Law of China before second amendment didn’t provide the right of communication through information network.Therefore, different parties debated on whether courts should protect network copyright. Of course, the final conclusion was “yes”. Judicial protection for network copyright not only follows the international tide, but also promotes the development of Chinese information industry and culture industry. In this context, the Supreme People’ s Court revised the Copyright Law and issued the Interpretation for Several Issues on Applicable Laws in the Cases of Disputes Involving Computer/ Internet Copyright (Interpretation) implemented in December 2000, 2 years later than the Digital Millennium Copyright Act (DMCA) issued in 1998.
  This judicial Interpretation addressed the most complicated issue on law applicability, that is, whether and how should a network service provider be civilly liable for the infringement of other users. As one of the drafters of the Interpretation , I am very proud. The Interpretation establishes the civil liability system for infringement by network service providers, not only learning from the experience of EU, US and other developed countries, but also considering the reality of China, which not only protects the copyright owner’s rights, but also considers the public access rights.In such a way, network copyright protection starts from judicial judgment and leads to revisions of the Copyright Law and issuance of Regulations on the Right of Communication Through Information Network (Regulation), which tallies well with the rule that legislation comes after practice. However, new challenges are emerging as network technology and additional services are developing, so the discussions on network service providers’ liability are continuing. This issue is always related to the development of network information industry and copyright industry as well as public interests, and increasingly becomes a big concern.
  In 2001, China’s Copyright Law was revised to include the right of communication through information network, recognizing network communication as a use of copyright, which authorized the State Council to develop corresponding regulations.
  This is a fundamental legislation involving network copyright. The revision includes only several provisions, in principle, not involving specific issues on law applicability often encountered in disputes.··ecember 2003, the Supreme People’s Court of China, based on the Copyright Law amendment and judicial practices, issued a Decision to Modify the Interpretation for Several Issues on Applicable Laws in the Cases of Disputes Involving Computer/Internet Copyright, and republished the revised judicial interpretation, improving the network copyright judicial protection mechanism in China.
  After the implementation of the Regulation, the Supreme People’s Court made the second modification to the judicial Interpretation in December 2006, deleting Article 3 (which means no longer retaining the application of newspaper reposting provision into network conditions), so the judicial Interpretation had only 8 articles left.
  After the implementation of the Regulation, how to settle disputes with the applicable law becomes a more prominent question. The Supreme People’s Court clearly required that if the Regulation had clearly provided, the provisions of the Regulation would prevail, such as in respect of search engines, links and other issues. If the Regulation had not clearly provided, the legal issues involved in litigation would strictly comply the applicable judicial interpretations, and in particular, the modified interpretation of network copyright, for example with regard to jurisdiction, the liability and the form of civil liability of Internet service providers and so on. The reposting and adaptation of works (excluding software, movies, novels), if paid, sourced and authored, before the operation of the Regulation on July 1, 2006, would not be deemed as infringement. The unauthorized reposting or adaptation of the works, even if paid, would be deemed as infringement, and will bear civil liability.
  After that, Chinese Internet services and copyright creative culture industry have been speeding up. By November 2014, there were 640 million Internet users, 530 million mobile broad-band users, and nearly 1.3 billion mobile phone users.
  Increasing network copyright disputes and network chaos have urged the Supreme People’s Court to modify and draft new judicial interpretation, to meet the urgent needs. In January 2013, the Supreme People’s Court’s Provision on Several Issues on Applicable Laws in Judging Civil Cases of Disputes Involving the Right of Communication Through Information Network (Provision) began to operate. This Provision was in fact the third modification to the judicial interpretation of network copyright, and re-drafted to address some new issues in practice based on the previous legislation and interpretation of network copyright protections. It is formulated upon the experience and lessons learned over 6 years since the second modification.
  (I) Scientific Definition of the Concept and Scope of Information Network
  Article 2 of the Provision clearly states that the Information Network includes computer Internet, radio & TV network, fixed communications network, mobile communication network and other information network, and LAN open to the public, with terminals such as computer, TV set, fixed telephone, mobile phone, and other electronic equipment. This will cover all networks involved in network communication right, and will give good solutions to difficult law enforcement previously caused by poorly defined “scope of network” in the application of laws, which is of great significance to network operator self-discipline and copyright protection.
  (II) Clear Definition of the Nature of Infringing Internet Service “Offering” Acts Unde r t h i s P r o v i s i o n , a ny unauthorized network offering of works, shows and AV products is clearly defined as infringement act,
  The unauthorized reposting or adaptation of the works, even if paid, would be deemed as infringement, and will bear civil liability.
  If an Internet service provider benefits from the works, shows or AV records supplied by users, the provider shall be deemed to bear serious liability for awareness of its infringement act.
  unless otherwise specified in laws and administrative regulations. In the past, there was no legal definition of offering, so there were endless theoretical debates, and difficulties in law enforcement practice.
  (III) Clear Definition of Two Acts of “Indirect Infringement”, i.e. Abetting and Helping Behavior, of Internet Service Providers
  If any Internet service provider abets or helps users to infringe the rright of communication through information network, when it is offering Internet services, then such offering will be treated as infringement act, and such Internet service provider will be liable for such infringement, under Article 7 of the Provision. However, in the past, network abetting or helping act was not specified in laws.
  (IV) Identification of the Faults of Internet Service Providers in Performing the Infringement Act
  Whether an Internet service provider knows or should know its alleged infringement to users is one of factors in judging whether the provider will be liable for the infringement. Based on judicial experiences, this Provision uses more articles trying to specifically interpret whether Internet service providers have subjective faults. Such specific interpretations are basically divided into four aspects:
  1. Whether the infringement act is with “evident fact”, for example, information control based on the nature of Internet service, manner, and possibility of infringement; types of works/products disseminated, visibility and clarity of infringing information; whether with the initiative to select, edit, modify and recommend works/products or not; whether with the initiative to take reasonable measures to prevent infringement; whether a convenient process is put in place to receive a notice of infringement, and make reasonable reaction; whether reasonable measures are taken to deal with repeated infringement by the same user; and other related factors.
  2. If an Internet service provider recommends on-the-hit film/TV works with list, catalog, index, descriptive paragraphs, profiles etc. easy for the public to access its website directly, by downloading, browsing, or otherwise, it shall be deemed to have been aware of its infringement act.
  3. If an Internet service provider benefits from the works, shows or AV records supplied by users, the provider shall be deemed to bear serious liability for awareness of its infringement act. Economic benefits from advertising specific works, shows, AV products or otherwise related, will be deemed as direct economic benefits; charge for general advertising and services etc. is not included.
  4. If an Internet service provider fails to delete, cover, break link or take other necessary measures upon receipt of the right holder’s notice by mail, fax or email, it will be deemed as knowing its infringement to the right of communication through information network.
  Analysis & Conclusion: Characteristics of the Network -specific IP and Legal Acts
  Legislation of network environment is complicated and involves many fields and many aspects, including IP.Therefore, the best way to forecast future network legislation is to study and conclude the characteristics of network-specific IP.
  There are mainly four characteristics of network-specific IP disputes: Firstly, rapidly increasing disputes. Since 1990s, the number of copyright and neighboring right disputes has been increasing among the network-specific IP disputes.In 2014, there were 95,522 and 94,501 civil cases of first instance involving IP disputes newly received and concluded respectively by local courts in China, representing an increase of 7.83% and 7.04% respectively compared to 2013.Of them, there were 59,493 newly received civil cases involving copyright, representing a year-on year increase of 15.86%; the number of copyright cases concluded by local courts accounted for 60% of all IP cases, where network copyright cases accounted for 50% of all copyright cases.
  Secondly, value-added service in information industry among others is developing fast, but the boundary of policy is still unclear. Many litigations or disputes are arising in information industry and culture industry, most litigations involve video sharing websites, digital library, search engine, P2P platform and other emerging technologies and new business models of value-added services. As the value-added service is developing fast in the Internet information and culture industries, legislation of this regard is not yet clear enough for actual operations.
  Thirdly, it is often seen that a case involves one plaintiff against multiple defendants or multiple plaintiffs against one defendant, and the percentage of such case is increasing. Such disputes generally may involve network information service, movies, music and other large-scale industry or trade, and may involve multinational companies and big Chinese Internet companies.
  Fourthly, there are many questions, disputes and challenges in the application of laws. Given unclear legislation and defective disputed theory in application of laws, judicial decision and individual case will continue to define some standards and principles, which are influential on industries, some even more influential than legislation, and sometimes, might cause unfavourable outcome.
  In a certain field, the legislation and application of laws are always starting from the definition or adjustment of the fundamental scopes and conceptions. In the international community, core ideas will be shared through theoretical research and exchange, international treaty or convention and judicial precedents.
  Under Article 10 “the right of communication through information network” of Copyright Law of China, the legal term of “communication through information network” refers to wired or wireless offering of works to the public, at any time and at any place at personal option. The core is “offering” through Internet rather than other means; regardless of how or when or whether the audience has access, it is the “offering” that leads to access; it is “offering” of the same degree or reproduction, rather than the offering of different nature or far from reproduction. Wired or wireless public offering of works by means unless clearly defined by law should logically mean the behavior system of uploading the works to a server open to the public who may download the works at any time and at any place at its option.
  Based on this behavior system, the liability system of common infringement on network communication right is constructed legally, which includes joint and several infringement liability for helping or abetting infringement on network communication right. The application of laws shall not violate or deviate from the basic meaning of network communication and the stipulation of infringement liability system.
  Therefore, the foregoing emerging network disputes trigger and generate some new questions to discuss and some new discussions on existing questions. For example, with the Regulation and the judicial Interpretation of Supreme People’s Court, the application of network service provider’s liability is still in discussion. The reason is nothing but technical development which enables the changing and improving service manner and leads to new problems.
  (I) Judgment on Information Network Communication Act
  To judge whether an act will constitute information network communication or not, there are different standards: one is objective standard, or server standard, and the other is subjective standard, or user sense standard. In objective standard, the key is to judge whether the disseminated works, plays or AV products are uploaded or otherwise placed by a network service provider to network server open to the public.In the subjective standard, as users can have direct access to linked website, and in the users’ eyes the website is offering information on its own, thus linkage shall be deemed as direct information network communication.
  (II) Legal Nature of Network Technology, Equipment Service Provision and the Fault Judgment on Service Provider
  As to the legal nature of network technology, equipment service infringement, some believe that the service provider’s act constitutes indirect infringement based on direct infringement or indirect infringement theory in UK and US; some claim that network service providers shall bear supplemental liability, and some believe that network service providers shall bear joint and several liability for infringement. There is no system of direct or indirect infringement in Chinese civil laws.Supplemental liability is a form of liability where the primary obligator is insufficient to repay all the debts in full, the secondary obligator will bear the supplemental liability for repayment of the shortfall.
  Supplemental liability is stipulated in Article 37 of the Tort Liability Law of China, involving the unfulfilled security obligations of the security obligator. Network copyright is stipulated in Article 36 of the Tort Liability Law of China, which obviously excludes the application of “supplemental liability”. According to the Civil Law of China, the Regulation and relevant judicial interpretations should apply common tort system to adjust network service providers’ use of its facilities, technical assistance, and participation in network information communication.
  No matter general civil cases or network copyright cases, no matter for content service providers or technical equipment service providers, in the eyes of legal practitioners, on the balance of liability, one side is “publishing house” and the other side is “telephone office”.
  Network copyright infringement is a fault liability; perpetrator’s subjective fault is one of the elements of its liability. To apply reasonable criteria for judging whether the network service provider is at fault, we should pay attention to two things: First, the fault judgment should be linked to specific works, to avoid inference mere from the website business model whether service provider is at fault or not, which will obstruct the development of Internet industry. Second, the fault judgment should pay attention to the network itself, the laws and characteristics of development, should not impose too heavy active pre-check and monitoring obligations on technology, equipment and service providers.
  (III) The Relationship between Constituents of Tort Liability and Disclaimer Conditions
  No matter general civil cases or network copyright cases, no matter for content service providers or technology/equipment service providers, to identify whether the accused infringer commit an infringement and bear the liability for compensation, we should insist on the constituent elements of tort, and consider whether there is a fault. The obligee’s notice does not contain the network address of the accused infringement, but when the network service provider based on the information provided in the notice is sufficient to accurately locate the allegedly infringing works, performances, and AV products, then the obligee’s notice shall be deemed as “warning with conclusive evidence”.
  The identification of “sufficiency to accurately locate” the allegedly infringing works, performances, and AV products should consider whether the service types provided by network service provider, the file types of works, performances and AV products whose link the obligee requires to remove or disconnect, as well as the names of the works, performances and AV products are specific or not. If the obligee’s notice is true, the network service provider should be deemed to be at fault, and bear corresponding liability for the extension of damage, which is in line with the Article 36 of Tort Liability Law of China.
  As to how to determine a “reasonable period” for network service provider to timely remove or disconnect the links, it is not appropriate to make a definite period due to difference in service nature, works nature and notice content, instead, the period may vary according to the form, accuracy, and file quantity in the notice, difficulty of removal or disconnection, quality of network service and other factors.
  (IV) Legal Representation and Appl i cation of “Safe Harbor Principles”
  The “safe harbor” provision originally came from the Digital Millennium Copyright Act (DMCA) issued in the US in 1998. The “safe harbor” provision is consisted of two parts, “notice + takedown”.The second paragraph of Article 36 under the Tort Liability Law of China provides for the “notice + takedown” rule against network infringement.
  The Regulation further provides for the “notice + takedown” rule in network environment. The essence of the rule is, on one hand, to clarify the responsibilities of network service provider and not impose high duty of care on the network service provider, who will avoid the interference of sudden litigation disputes; and on the other hand, to provide a timely remedy channel to the obligee, who will get quick relief by means of “notice + takedown”, and discontinue the infringement.
  The main questions lying in how to apply the “notice + takedown” rule are as follows: Firstly, the rule is hard to apply. Apart from network copyright field, for trademark infringement or patent infringement on e-commerce platform, the e-commerce platform service provider generally does not know what to do and how to do, since there is no clear provisions for how to apply this rule. Secondly, the rule is merely a “notice + takedown” procedure, lacking design of “notice+recovery”, so network merchant’s interests or benefits are not protected. Thirdly, the rule is generally misused. Currently, due to the lack of “notice + recovery” design, there are frequent malicious or false notices against competitors’ networks, so regulation is urgently necessary.
  It should be said that, in cases the laws, regulations and judicial interpretations involving Internet copyright protection are in place and improved, according to the priority principle of the special laws, that is, the provisions of special law will be applicable in priority, or if there is no such provision in the special law, the general law will be applicable.Because the legislation and judicial interpretations have already considered the cases of the general law and the law in other sectors.Especially the judicial interpretations made by the Supreme People’s Court about the laws applicable in network copyright protection, first of all, clearly explain several matters on the application of laws in network cases, in accordance with “the Civil Law, the Tort Liability Law, the Copyright Law and the Civil Procedure Law and other laws”.
  Interactivity is not unique to the characteristics of network communication, nor is it mysterious.Extension of the concept is usually very broad. Interactivity does not cover the essential attributes of network communication. If the nature of an act is defined unclearly, there will be inevitable errors in the regulation or law of such act. The most common traditional face-toface communication is interactive, or called interactive style. Questions and answers, communicators and audience interaction, are commonly called interactive style communication.
  The interaction closest to network communication is interactive processing as a computer information processing system, which is the most common feature of computer technology.The operator inputs information and command through the terminal device, and the system will process immediately after receiving the information, and display the results via the terminal device. System and operator communicate in manmachine dialogue on a question-andanswer basis, until the final results are obtained. Especially for nonprofessional operator, the system can provide prompt information, and gradually guide the operator to complete the desired action, and obtain the results. Compared with the non-interactive processing, this manner is flexible, intuitive, easy to control, etc., which is more and more applied in information processing systems. However, in non-Internet environment, obviously, none of these interactive behaviors will constitute a network communication behavior.
  As provided in Article 10 of the Copyright Law, “people may have access to the work from a place and at a time individually chosen by them”, this expresses a manner of access to works that is different from radio or any other previous communication manner, that is, the new access manner is optional at any time and at any place. If we analyze it in the meaning of interaction, it is at most the interactive style or one side of the interaction. In no way shall it be an expression of “interactive style”; the statement that it is an interactive presentation, in fact, is a misunderstanding and a baseless assertion.
  Since network copyright infringement is extremely complex in act and manner, there are different understandings and opinions in different courts in judicial practices as to how to define the intension and extension of network infringement act. Some extend the original infringement act of network communication right so that link and search are deemed network communication rights too, which in fact, enlarges the understanding of the extension of original network communication right, and deviates from the definition of legislation and judicial interpretation of this term at that time. The essential act of copyright infringement is “copy”, and in network environment, this copying act is defined communication accordingly. In fact, there are repeated countless “copies”, but the legislation has defined the same behaviors in network environment as “communication”.If the communication behavior then breaks out copy, is it appropriate or are we too picky? Infringement act as extension of communication act is adjustable and controllable, it can be stipulated by law of course, but it is not the right time to subvert the entire system. An infringement act as extension of communication act should have the constituent elements, that is, only when the network service provider’s behavior and the original infringement act jointly constitute a contributory infringement, it can be held infringement act as extension of network communication right behavior. Here is the key condition for the perpetrator subjective fault, that is, whether it knew and should have known that the content transmitted by the user is infringing content, whether its obligations are performed entirely. This requirement has become the consensus of the international network copyright infringement regulation and judicial determination.
  In a period of time, the divergent phenomenon of judicial practices are really worrying: some advocates network copyright protection should apply the principle of liability without fault; some identifies helping act as direct infringement; some deviates from existing laws and judicial interpretations and disregards the principle of notification; some treasures the “red flag principle” in other countries as a principle of justice in China, leading to excessively discretionary identification of infringements ; “unrequited” interpretation of “communication” behavior complicates the simple legal relationship; fortune-seeking utilitarian unconventional regardless of clear legal provisions and so on. These are not beneficial for network copyright protection, and will have undue influence on the legitimate right of the public to access information, on the role of information industry in national economic development, but also affect the authority and stability of the legal regulation of the Internet industry. Let’s look forward to the new copyright legislation, more accurate and appropriate judicial interpretation, which can give a clearer policy guidance to prevent and reduce network chaos.
  Thanks should be given again to Beijing Intellectual Property Court (2015) Judgment Jing Zhi Min Zhong Zi No. 559, which clarified the identification of specific acts by individual case: “It can be seen through the presentation that, given the different pages generated by clicks on different contents involve different pages of different websites, as the appellee acknowledges the consistency of this presentation with the involved notary process, this Court hereby finds that the alleged contents supplied by “Rabbit Video” are from other websites, rather than from Rabbit Video’s server. Accordingly, the appellant’s claim that Rabbit Video’s supply of the alleged contents constitutes a link service provision act is established and supported by this Court. The appellee’s claim that the behavior is an information network communication act is not established or supported by this Court.” This statement of the judgment identified network link act is different from network communication act, the expression was simple and clear and unambiguous, and should be a milestone in the trial of network copyright cases.
  Future Response: Network Copyright Protection Strategy
  As to future development and countermeasures, the following matters should be noted:
  Firstly, we must insist on the bottom line of IP protection under the network environment, prompting the perfect integration of IP, network technology, and value-added service platform. Not to make the network full of garbage, it is necessary to protect network copyright and other IP; the original copyright industries should also accept the challenges of the IT network environment, or else the reasons behind the failure may not be pirate, counterfeit or infringement, but new technology challenges and phase-out .
  Secondly, the balance of IP protection and public access to information. The public should have access to their desired information, which is the cornerstone of social harmony and stability, a fundamental matter. Use of IP shall serve the community, and at the same time balance with the network copyright protection. In US, the strongest advocate of IP protection, the US Constitution precisely provides for the balance between IP protection and the public access to information, which is the cornerstone of the entire system of IP law. The public access to information relates to the basis for the establishment of a civilized society; the ultimate purpose of copyright protection is to meet the public need for high quality works and information. Over recent years, there have been many opinions in the discussion of news copyright protection. In discussing this issue, we can not ignore the principle of balance between copyright protection and the public access to information, nor can we ignore the significant differences of operating systems between China and developed countries, as well as the inherent particularity involving news works properties, fair use and other particulars in the copyright system. It is short-sighted and ignorant to neglect and disregard these principles and differences in the utilitarian pursuit of copyright benefits.
  Thirdly, to ensure network security is the basis and priority of network development, regulation and management. In the current situation, the protection for copyright and other IP in network environment is not the most prominent network related legal issues. Network security, pornography, gambling, drugs and other illegal harmful information and other issues endanger children’s physical and mental health, requires more public rights, powers or authorities to intervene and resolve the problems, in the common interests and benefits of the society as a whole.
  Fourthly, we must create and improve systems and theory researches on network information industry, and make theories and researches compatible to the rapid development of information industry. In response to the rapid development of Internet, mobile Internet and information industry and the problems caused thereby, we should always maintain our theoretical thinking in a scientific and calm manner.
  (Translated by Liu Xiaoyu)

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