China has a pretty good system for takedowns of copyright
subject matter stored or posted online without the approval of the
copyright owner. Our China lawyers are have helped motion picture
producers, motion picture distributors, gaming companies and other
copyright owners invoke this process and the results are generally
good when the copyright owner is well prepared.
This is the first in a series of posts looking at online
takedowns. In this post we provide a general summary of the
regulations that establish the takedown procedures for copyright
The copyright takedown regulations protect the right of
"communication through an information network." This
right is one of several comprising the copyright in audiovisual
recordings and sound recordings under Chinese copyright law.
References below to "recordings" include both sound
recordings and audiovisual recordings.
The right of communication through an information network means
the right to make recordings available, by wire or wireless means,
to members of the public from places, and at times, chosen by them
individually. Making recordings available to the public through an
information network requires permission of the right owner. The
right owner is entitled to remuneration when the right is
The regulations apply to "network service providers"
to "service recipients"
(服务对象), but neither term is defined. A
service recipient can be any person or any legal entity that causes
content to be posted online.
There seem to be two kinds of network service providers:
Internet access providers (IAPs) and Internet presence providers
IAPs are entities that provide access to the Internet. Examples
of Chinese IAPs include China Telecom, China Mobile and China
IPPs provide network space for users to upload information. They
also provide search engine services. IPPs often provide the disk
space, high-speed Internet connection, or even the web site design,
for those wanting an Internet presence. Youku, v.qq.com and
www.letv.com are examples of Chinese IPPs.
This is how the copyright takedown system applies to network
service providers and service recipients:
The right owner may give written notice to the network service
provider requiring the removal of a recording if the right owner
believes that the information network is infringing the right by
allowing the recording to be stored, searched or linked without
approval. The notice must contain certain details, including
preliminary proof of infringement.
After receiving a notice, the service provider must promptly
remove the recording or disconnect the link. The service provider
must then forward the notice to the service recipient.
The right owner is liable in damages if, as a result of a
notice, the service provider wrongly removes or wrongly disconnects
and this causes loss to the service recipient.
If the service recipient believes the network communication
right has not been infringed it may deliver an explanatory
statement to the service provider and request reinstatement of the
recording or the link.
If the service provider receives such a statement it must
promptly replace the recording or reinstate the link and then send
the explanatory statement to the right holder.
On receiving an explanatory statement the right owner cannot
issue a fresh complaint and would, we presume, need to initiate
court proceedings to take the matter further.
A service provider that does not follow these procedures can be
required to cease the infringement, issue an apology, eliminate the
"bad effects" or compensate the right owner for losses.
If the public interest is affected the authorities can confiscate
any illegal gains and impose fines. In serious cases, computers and
other equipment used to provide a network service can be
The regulations draw a distinction between service providers
that provide searching or linking services and those that provide
storage space. The liabilities of each are different. We look at
this distinction in our next post.
Originally published on November 16th, 2015
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962.
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.
The Policy stresses on the need for a holistic approach to be taken on legal, administrative, institutional and enforcement issues related to IP.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).