Suggestions on the draft of Copyright Law Judicial Interpretation in China, I

Currently, it’s argued heatedly in America that whether SOPA and PIPA shall be passed, and on the other side of the world the Judicial Interpretation on Cyber Copyright is under drafting by Supreme People’s Court in China. Will the new interpretation meet the demand of the development of internet or bring a more rigorous regulation? That catches the eyes of the public. Bridge IP Law Commentary will give our suggestion on the judicial interpretation in three posts, and today is the first one of the series:

 (1) the far reached “safe harbor”

Nowadays, there’re few website runner providing the infringing content directly, instead they tend to set up a sharing platform with the server and technology also provided by then, therefore, the netizen could upload or share the information interested, while, most of which are infringing. For this reason, the web-runner is no long the ICP for they have become the ISP, such as Baidu Wenku, Tudou.com, Youku.com, Kugou Music. Such change mainly due to the liability relief in law to the web server, which is the Safe Harbor Rule known to us, which mainly means the ISP shall not take any liability shall it delete the infringing content on the notice from the right owner once it’s not known or shall not be known for such infringing contents.

The seemly fair article is fiercely argued by the public, which resulted in the group compliant by Chinese writers against Baidu Wenku, and the core of the argument is how to determine the “known or shall be known” of the ISP.

 (2) The standard of red flag

The result as mentioned above is mainly resulted by the operation model by the ISP and national condition in China. The safe harbor rule’s intention is to protect the neutrality of the technology, aiming at the security of the pure technology provider. In judicial practices, the point for Red Flad decision is :1) is there any clues to the participation by the website in content sharing and broadcast; 2) shall the website be known the existing of the infringement.

For the application of the first point, the ISP shall categorize or introduce the infringing content. For most main websites, their home page is not simply a search page but an elaborated one, which implies the categorization and introduction of the uploading from the netizen by the website. Take Baidu Wenku as the example, it lists the category of novel and fiction, while Tudou has sports, shows, TV, films. With such channels, the visitor shall not search the programs their own, while the infringing content could also be easily accessed by the visitors. On the other hand the touch with relevant is inevitable in the process of the website design, thus the website is actually participating in the sharing and broadcast of the infringing information.

Certainly, the participation by the website in the sharing and broadcast does not necessarily mean the liability, for the “known or shall be known” shall also be considered in liability determination. In judicial practices, those noted works like hot movie or fictions by famous writers is less likely to be uploaded for download of free, therefore, once such works is shared on the website without license, the website is tend be determined known or shall be known, which could not be covered by safe harnor rule for the red flag test.

 (3) Serious infringement with less covers from right protection

From the above analysis and the judicial practices, the red flag test is widely judged in internet sharing website, however, many sites still choose to risk the punishment for more infringing content and detailed category on their pages. Meanwhile, the similar lawsuit is bombing in the court, and followed by the hearing fatigue, the compensation standard is becoming lower and lowe for currently 20, 000 yuan for a infringed movie or several thousand yuan for a infringed song is more common in sentences. The low compensation instigates the infringement, and gradually develops the vicious circle of infringement and endless lawsuit with low compensation supported. That’s also the reason for the vague end of the conflict between Baidu Wenku and local writers, for Baidu is clear aware of the fact that it will take little compensation once the sentence supporting the writers, and such compensation is a hair off a bull’s back compared with the profit gained by the IT giant.

Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)

Author: Mr. Luo Yanjie
Attorney-at-law of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.

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