What are the Difficulties in the Online Copyright Enforcement in China?

(By You Yunting) Within the World Intellectual Property Day approaching, Zhihu.com invited me to answer some questions about the popularization of intellectual property rights with the first one below regarding what the difficulties are in the online copyright enforcement in China.

The Copyright Law aims to protect many types of works, including cinematographic works, television, written works, works of fine arts and graphic works. However, there are different kinds of infringement. When referring to whether relates to Internet, it can distinguish into online infringement and offline infringement. When referring to the infringement methods, it may include unauthorized reproduction and personate plagiarism. When talking about infringing any specific rights, it may discuss the right of modification, the right of integrity and so on. Now that I think about it, I’d like to narrow it down to a topic regarding what difficulties are in the online copyright enforcement China.

  1. The law has not kept up with technology in this field.

Human beings have spent hundreds of years to establish a business model in the industry of copyright, i.e., a copyright pays for the reproduction of its content. However, as with the fast-developing of technology, especially since the dawn of the Internet, reproduction and communication turn out to be simpler. The previous business model about payments of copyright via reproduction and distribution is becoming something akin to the Maginot line which was bypassed by the dawn of the Internet. At this moment, the protection model in the Copyright Law is faced with new challenges.

The key protection in the current Copyright Law is focused on the right of reproduction and the right of distribution. However, the development of technology makes reproduction simpler so that anyone could reproduce and distribute what they have on the Internet. This means, everyone could be in violation of the Copyright Law. In China, there has long been a custom that the law fails where violators are legion. As such, when everyone is an offender, the current Copyright Law is playing an embarrassing legal role. Even though the power of individuals is quite weak, the serious online copyright infringement in China also makes some large companies like Microsoft into a dilemma with so many sources and users of piracy. The power of enforcement is always less than what the right holder attempts to protect.

  1. It is hard to identify the copyright infringer.

Now that the right holders try to protect their rights, they will rely on legislation. However, at the moment, many times the right holder will find it hard to identify the copyright infringer. Because the internet is anonymous so that everyone who registered online can deliver a speech. Even though the words of smaller users who have few fans are of little effect, the words of some bigger users who had millions of fans may be different from that of smaller users. Furthermore, who is operating the account of bigger users is still unknown to most of the public. In the event that the right holders require the Internet service provider inform of who published the pirated information, a lot of times they will refuse to inform the right holders of. Now that they agree to inform the right holders of the a group of IP addresses, the right holders have no right to ask the telecom company providing for the users’ information according to the IP addresses, because they are not police.

  1. The amount of compensation is comparatively small.

It is not a piece of news that the amount of compensation is comparatively small in China whilst occasionally a high amount of compensation is attracted attention. Currently, there has been a slogan in judicial system that intellectual property protection must be suited to China’s condition. Then what is China’s condition? According to the state policies, China is still at the primary stage of socialism and will remain so for a long time to come. As such, an infringement towards a hot movie shall be determined to make compensation of RMB 20,000 and moreover the infringement over written works must be made compensation in accordance with the national standard of royalties. However, the national standard of royalties was made of the past century with comparatively low. But the courts have their own difficulties that they are also severely restricted in the number of persons. If they improved the compensation standard so that more litigation which both the right holders and lawyers are benefited from will be brought into the courts, the judges would be tired which does no good for judges.

  1. The safe harbor rule is abused.

The “safe harbor rule” means that the Internet service provider who deletes the infringing content on its website in a reasonable time may exempt its liabilities. This rule is invented by American, but is abused to protect the interests of internet service provider in China.

The biggest problem comes from vertical search and apps. Because there are so many hot BBS, movie and music searching, and library-pedia developed in China for the purpose of appreciating the copyrighted works. Actually, these products are developed to encourage piracy whilst the developers may be exempted liabilities on the grounds of the safe harbor rule if being brought into litigations. However, there are fewer products in developed countries than in China, within two different understandings over the safe harbor rule. In the early days, many courts decided to apply the safe harbor rule into the vertical search and apps. But recently, the judicial tendency is in a better place. It is a turning signal that QvodPlay is going to shut down its server under pressure.

 Lawyer Contacts

You Yunting86-21-52134918  youyunting@debund.com/yytbest@gmail.com

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