Hinder or Protection? The Role of Law in Internet Development

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

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 second one of the series:

I. No hinder for internet development shall by law

For the situation, maybe someone would propose a stricter law on internet regulation, with the compensation sum increased sharply, for it could settle the vicious circle. However, as we believe such method could only protect the right of the obligee for moment with the radical cure impossible.

Just as stated in the above analysis, the ISP could be protected by safe harbor rule, while the red flag test may bring public criticize. The rigorous legislature, in our opinion, will challenge the industry more than regulate the infringer. And once the compensation is increased vastly, there is also necessarily counter measures from the web to evade the regulation. Supposed the main page of Baidu Wenku were designed with no category or introduction on it but a search box, and then could there still were the complaints from the writers? Probably, the answer is still yes. Despite no “red flag” is on the website, while the infringing content is still remained, and the clever visitors will still search the novel or essays wanted. And in such case, the writers could get no profits either, and on the other hand Baidu Wenku could be covered by safe harbor rule for the liability exemption.

Then could the abolishment of the safe harbor rule get the problem done once and for ever? To our opinion, once such method is adopted, it’s actually kind retrogress of the copyright law. From the current perspective, to abolish the safe harbor rule could effectively limit the broadcast of the infringement, while who could ensure the future? When the copyright law was newly promulgated, there provided no internet broadcast right in it, then who how could it come to people’s mind that it become the main method for information broadcast then? And for the same reason, once the information is no longer stored in the server but scattered and combined on the choice of visitor’s own choice, and the website is just a window on the screen (it might be realized with the cloud computing), then how law determines the infringing party as well as the party aiding the infringement then?

As to the legislature of the Copyright Law, it mainly focuses on the encouragement on the broadcast and creation of the works benefiting the socialism spiritual civilization and material civilization construction, as well as the promotion on the prosperity and development of socialism culture and science industry. In other words, the legislature purpose of the Copyright Law and other IPR laws is to encourage the innovation and creation. The development of the internet itself is kind of innovation and creation, thus to limit it by legislature is kind of paradox.

Surely, that does not mean the infringement of ISP shall not be limited, and any profiting with the infringement against other’s interests shall be prohibited. But basing on the above analysis, we think it’s not wit to prevent the infringement by issuing rigorous laws to limit the development of the industry, and also it seems to function less on the infringement and against the intention of the legislature.

II. The Base to Copyright Protection: the Consciousness of Original Products

Then what’s the best way to protect the interest of the copyright owner for the law shall not and could not limit the development of the internet, or let the flood of the infringement on the internet?

There are many foreign examples we may follow. Take those in U.S.A. as the example, the internet technology of U.S.A is the most advanced one in the world, and leading in the aspect of popularity, internet rate and other aspects. However, the cyber infringement is rare in this country, for instance, it could hardly find the pirated movies or TV series on Youtube. And that mainly comes from the sense of copyright through years of cultivation. In America, there’s an organization named RIAA, which mainly focusing on the protection for the copyright owner. Annually, it will expense vast lawyer’s fee and lawsuit fee, while which could not be covered by the compensation. But that does not stop the devotion of the organization. The main reason shall be the alert to the infringing party for most defendant on its list is the normal user of the internet. With such function and purpose, it could be gradually developed a consciousness of using the original product and leads to the establishment of safe harbor rule in the country.

At last, the drafting of judicial interpretation on cyber copyright is under way. Bridge IP Law Commentary hopes the interpretation shall not, while setting the specific determination standard, rigorous regulations burdening the obligation of the website for the purpose of copyright protection. The laws shall be adaptive to the development of the internet and create a healthy judicial environment for the internet, and any protection for an industry with the expense of the sacrifice of the other could only lead to lose-lose result.

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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