On December 17, 2012, the Supreme People's Court issued the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases of Infringement upon Information Network Dissemination Right (hereinafter referred to as the "Judicial Interpretation of Information Network Dissemination Right"), which shall be effective as of January 1, 2013.
The Judicial Interpretation of Information Network Dissemination Right focus mainly on how to ascertain infringement upon information network dissemination right, particularly how to determine the legal liability of internet service providers (hereinafter referred to as the "ISPs").
1. Distinction is made between acts of providing works and acts of providing internet services.
In accordance with the Judicial Interpretation of Network Dissemination Right, the act of information network dissemination is categorized into the provision of works and the provision of internet service based on the legal criteria as to whether or not the works of copyright owner is directly provided.
2. ISPs' liability varies with their different acts.
(1) In the event that the ISPs provide works, performances, audio-visual recordings of others through information networks on their own or in collaboration with others without permission of the copyright owner, the ISPs shall be held directly liable for the said infringement upon information network dissemination right.
(2) In the event that the ISPs, instead of committing acts of providing works, instigate or aid network users to implement acts of infringement upon information network dissemination right during their provision of internet services, the ISPs shall be held indirectly liable for the direct infringement upon information network dissemination right committed by the network users and shall take jointly and severally liability. Acts of the said indirect infringement include:
(A) Instigating infringement, which refers to the ISPs use words, suggestions of technical support, reward points or other similar methods to induce or encourage network users in committing acts of infringement upon information network dissemination right;
(B) Aiding infringement, which refers to the ISPs know or should have known network users committing infringement upon information network dissemination right by using their internet services but fail to take any necessary measures such as deleting, blocking, disconnecting, etc. to stop such acts, or provide assistance such as technical support.
3. The basis of assuming liability for instigating infringement and aiding infringement: know or should have know.
In accordance with the Judicial Interpretation of Network Dissemination Right, the basis of having the ISPs bear the liabilities of instigating or aiding infringement is that the ISPs know or should have known the infringement acts committed by the network users.
Specifically speaking, the People's Court should determine whether the ISPs "know or should have known" by examining the following elements: the ISPs' capability of information management, the types and popularity of works, performances, audio-visual recordings disseminated and degree of obviousness of the infringed information, whether the ISPs have actively chosen, edited, modified or recommended the works, performances, audio-visual recordings, whether the ISPs have actively taken any reasonable measures to prevent infringement, whether the ISPs have implemented a convenient program to receive infringement notices and whether the ISPs have made reasonable responses to the said infringement notices, and whether proper measures are taken by the ISPs towards network users committing repetitive infringement acts.
4. ISPs have no obligation to actively examine the infringement acts of their service targets.
In accordance with the Judicial Interpretation of Network Dissemination Right, in the event that the ISPs fail to actively examine acts of infringement upon information network dissemination right committed by its network users, the People's Court shall not find the ISPs at fault of the said infringement.
5. Chinese courts have jurisdiction over cases where the place of infringement and the defendantdomicile are both outside of China.
In accordance with the Judicial Interpretation of Information Network Dissemination Right, where the place of infringement and the defendant domicile are both difficult to determine or are both outside of China, the location of facilities such as the computer terminal where the plaintiff discovered the infringed contents may be regarded as the place of infringement.
In the judicial practice, there have been number of cases where the defendant domicile and the place of infringement are outside of China with the infringement result occurring within the China. This provision allows the Chinese courts to have jurisdiction over such cases where the place of infringement and the defendant domicile are abroad, conveniently allowing the copyright owners to file lawsuits in China.
6. The Interpretations of the Supreme People's Court on Some Matters concerning the Application of Law in the Trial of Cases Related to Copyright Disputes over Computer Network shall be repealed on the day that the Judicial Interpretation of Information Network Dissemination Right comes in force.
The Judicial Interpretation of Information Network Dissemination Right shall be applicable to the cases that are still pending by January 1, 2013 (including January 1); but shall not be applicable to re-trial of cases in which final judgments have been rendered before January 1, 2013 pursuant to an application of re-trial by the parties concerned or in accordance with a decision arising from trial supervision procedures.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
