"Right to disseminate works on the information network" in the Chinese copyright laws derives from the provision of article 8 of World Intellectual Property Organization Copyright Treaty (the "WCT") 1996 that "authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them". In amendment to the China Copyright Law enacted in 2001, information network dissemination right was introduced. By implementing the WCT into national laws, this right was created also with the legislative purpose to allow right owners to control, inter alia, the dissemination of their copyright works via the information network. 

(1) An overview of information network dissemination right

According to the Chinese copyright laws, information network dissemination right generally includes the right to transmitting the works through the information network and the right to getting remuneration by permitting others to disseminate copyright works via the information networks.

Copyright owners, performers and producers of sound or video recordings are the statutory proprietors of information network dissemination right. In practices, to better utilize the commercial value of works, information network dissemination right is often licensed to others by owners under contractual relationships.

The subject matters of this right include copyright works, performance and sound or video recordings. "Copyright works" here refers to the "work" as is defined by article 3 of China Copyright Law 2021. According to China Civil Code enacted in 2021 and Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving Infringement of the Right of Dissemination of Information Networks (the "Provisions of the Supreme Court"), network users and network service providers would be the liability carriers if infringement is established. 

(2) Cases involving disputes on information network dissemination right

The number of cases in relation to information network dissemination right is increasing sharply during the past years. Take Beijing Internet Court as an example, since its setup in September of 2018 to November of 2021, 125985 cases involving copyright infringement were accepted, about 99 percent of which concern information network dissemination right1.

Data shows, most disputes regarding right of information network dissemination occur in well-developed areas such as Beijing, Shanghai, Guangdong, Zhejiang and Jiangsu due to the fact that, rapid development of economy and technologies induce more intellectual achievements and more online platforms or network operators such as Baidu, Tencent, Alibaba, ByteDance and ChinaTelecom. Special internet courts have been set up in Beijing, Guangzhou and Hangzhou responsible for deciding internet-related disputes, where copyright protection mechanisms are enforced better with sufficient judicial resources and profound experience of judges. As is disclosed by Guangzhou Internet Court, in 2020, the number of the concluded internet-related copyright infringement disputes reached to 28852, and 27399 cases of the same nature were concluded last year2.

Information network dissemination right may be protected through criminal, administrative and civil proceedings, among which resorting to civil litigation is the main choice for the right owners to obtain protection. From the reports disclosed by the Chinese local courts, more cases are concluded in settlement through the intermediary of courts than taking judgments as the medium of dispute solution3. 

(3) Characteristics of acts of infringing right of information network dissemination

Comparing to traditional infringing acts, acts of infringing right of information network dissemination always involve more advanced techniques and therefore become less visible to the right owners.

Internet has broken the country boundaries and disseminating works on the internet would make them available all over the world. Influence caused by disseminating the infringed works can be more extensive than before, and therefore loss caused by the infringing acts would be greater.

Infringing modes have become more diversified. Infringement may be committed in the traditional way such as uploading works for browsing, downloading or playback, online timed playback, network service providers providing links, providing P2P services, providing search engine, providing storage space services and deactivating or circumventing technical measures, and in the non-traditional modes like deep linking and iframe embedding4.

In recent influential cases, infringement is often conducted against online games, TV shows, films, literary and musical works when these works have wider popularity in the market, and computer software has become a frequently infringed work. 

(4) Challenges to protect information network dissemination right

Creation of copyright works often needs abundant investment of human and economic resources, and therefore license fees are sometimes very high. However due to the ease and fastness of dissemination over the internet, infringement may be conducted easily through diverse devices and means, sometimes the infringed works may be disseminated to the world in seconds. 

Anonymity and extensiveness of internet result in difficulties for courts to identity internet users and to find out the real liabilities bearers. Current online platform operators may be both content and service providers, which sometimes imposes great barriers to courts in deciding whether there is infringement and infringement liabilities.

As stated above, there are new modes of infringement occurring on the information network proving of which itself is difficult. Development of linking technologies and frequent use of them have brought new issues to be considered by courts. For instance, it remains arguable that whether deep linking may constitute infringement and if affirmative, what conditions should be fulfilled to establish infringement. To solve these problems, different tests have been proposed in specific cases such as server test, viewer-oriented test and the new public test. 

In judicial practices, damages granted to the right owners are always far lower than the expected amounts. The right owners' expense on enforcing their rights in and out of court is rather high comparing to the low amounts of damages. In most cases, damages are decided by discretion of judges as it is hard for the claimants to prove the actual loss caused by the infringement or actual profits obtained by infringers. Damages by discretion are decided by evaluating the severity of the internet-related infringing acts, and it is too ambiguous for the judges to come to a fair and persuasive amount of damages in these cases.

(5) Conclusion

Important amendments to the Copyright Law in 2021 have been made to satisfy the demands of stronger copyright protection in the digital environment, yet controversies on legal issues such as how to decide between infringement and fair use have been caused by wide use of advanced disseminating techniques. We expect more judicial interpretations and guiding cases to be made by the Supreme Court to get a better strike between the interests of right owners and the public.

Footnotes

1. https://m.thepaper.cn/baijiahao_15462645 

2. https://gzinternetcourt.gov.cn/ 

3. http://www.zjcourt.cn/art/2021/4/28/art_81_23632.html; http://xzzy.chinacourt.gov.cn/article/detail/2018/07/id/3385825.shtml; https://3g.163.com/dy/article/G81K4E1F0514D3UH.html?spss=adap_ pc

4. http://xzzy.chinacourt.gov.cn/article/detail/2018/07/id/3385825.shtml 

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