This is the second in a series of posts about China's system
for the takedown of copyright subject matter stored or posted
online without the copyright owner's approval. In our first
post, Copyright Takedowns in China, we provided a
general summary of the regulations that establish the takedown
procedures. These regulations enable enforcement of the "right
of communication through an information network" as it applies
to sound recordings and audiovisual recordings. As we have seen,
the regulations apply to "network service providers"
"service recipients" (服务对象).
They draw a distinction between providers of searching or linking
services and those that provide storage space.
The distinction between searching and linking providers and
storage space providers is not always clear. What is clear is that
the liabilities of each are different.
Souhu and Sina are examples of Chinese linking services. A
search or link provider is not liable for compensation if it
disconnects the link after receiving a takedown notice. The
provider remains liable for contributory infringement if it knows,
or had reasonable grounds to know, that the linking of the
recording infringed the right of communication.
Youku, and Chinese video websites such as iqiyi.com and ku6.com,
are storage space providers. But they also provide searching and
linking services. For example, some videos are searchable on Youku
but there is a link to letv.com where these videos are stored.
A service provider that provides storage space to a service
recipient that stores infringing recordings is not liable for
compensation if it:
makes no modification to the recordings
doesn't know and has no reasonable grounds to know there is
gains no direct financial benefit from the recordings; and
removes the recordings on receiving notice from a rights owner
according to the procedure outlined in the regulations.
One explanation for the distinction between the liability of
storage space providers and the liability of search or link
providers is that the copyright subject matter is not sitting on
the servers of the search or link providers. Additionally, storage
space providers have more control over the content they hold. In
practice, the distinction can be mitigated because a Chinese court
is entitled to take into account any rankings or recommendations
made by the provider.
In our next post we'll look at how the takedown procedures
apply to Chinese cloud service providers.
Originally published on November 25th, 2015
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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