Music Website in China: What Influence from Latest Copyright Law and Judicial Interpretation

Recently, the exposure draft of Copyright Law PRC (the “Exposure Draft”) has been the hot topic of the public, and also there comes the argument on the modification of some articles. In last week (20^th April, 2012), the Supreme People’s Court released the Regulations on the Several Issues on the Law Application in Hearing the Civil Dispute of Infringement against the Right of Information Communication by Nerworks (exposure draft) (the “Judicial Interpretation”), and the document mainly intends to make kind of interpretation on the application of the right of information communication by networks. Then, what influence will come to local music websites shall both the Exposure Draft and the Judicial Interpretation are passed? The following is our opinions on it (the picture is the logo of QQ Music, one of the main music website in China):

I. The scope of the protective object is enlarged with the extension of the definition of the “information communication by networks”

First, the Judicial Interpretation has made a specific definition on the information networks, which includes “PC networks, radio networks and mobile communication networks”, while the aforesaid radio networks is not regulated in the existing Copyright Law. For the consideration that the operation of the music website is becoming increasingly diverse, and it’s highly possible to come into the TV, therefore the music website shall pay attention to the revision.

Besides, comparing with the definition of the right of information communication by networks in the existing legal document, the Exposure Draft has amended “live broadcasting” and “rebroadcast” into it. To take the function of “radio station” in many music website, by the Exposure Draft, it shall be regulated by the right of information communication by networks. (According to the current copyright law, such functions shall not be included in the “information communication by networks” for its not “interactive”). The direct consequence of it the recorder (the recording company) may act to protect its right directly against the music website for the “radio” function. (According to the existing Copyright Law, in such situation only the copyright owner may file the lawsuit against the music website on “other rights”, while the recorder has no such rights). But for the consideration that the radio stations of the music websites are mostly support music-on-demand, therefore the recording company is actually entitled to sue the website directly, so for this reason, it will produce no major influence on the music website for this revision.

II. Heavier liability of infringement with more difficult to refer to the safe harbor rule

The main precondition to apply the Safe Harbor rule is the broadcast party is the ISP. By Article 4 of the Judicial Interpretation, “When the plaintiff could demonstrate the ISP is seemed to provide the works, performance or the recording works, the people’s court may thereby determine the illegal provision, unless the ISP could prove that it only provides the infringing works, performance or he recording works the automatic connection, transmission, information storage room, search, link, p2p technology”. So the copyright owner could only demonstrate that the broadcaster is equipped with the appearance of the broadcast, that means the user could feel that it’s the broadcaster providing the copyrighted works), while the broadcaster shall demonstrate that it’s the ISP.

For the music website, most of them are equipped with the appearance of “content provision” (such as the classification of the music works, and the adding of the album material). In the past, many music websites claimed that the infringing content are mostly uploaded by the netizens, and by that they will only take the liability of indirect infringement even the infringement is established by the court. (the red flag standard). Once the judicial interpretation could be passed, by the law, the music website of this kind is less likely to be determined as the ISP but the ICP who shall take the indirect infringement liabitly thereafter. Although, the consequence in practices may be less different, the nature of the infringement of the latter situation will be more sever and the compensation paid by the music website will be increased accordingly.

III. To detail the procedure of delete on notice with the limit on dilatory tactics

It shall be first clarified that the procedure of delete on notice is only applicable on ISP with no fault. Although by the business models of most music websites, it demands no procedure of delete on notice when the right owner is protecting their right, the music websites could always receive the similar request. Before the past case, the music website will demand the right owner to remake the notice for the inadequate notice, such as providing the detailed link, to make the time. By the Judicial Interpretation of this time, the dilatory tactics will be limited.

By Article 17 of the Judicial Interpretation, “When the ISP may strictly focus the content on the notice received; it shall be deemed that the notice complies with the law and regulation.” In other words, in the future judicial practices, the right owner could only provide the basic information of the works then the court may focus the infringing part and delete the content, and that means the past practice to demand the provision of the more detailed information is no longer applicable. Furthermore, by Article 18 of the Judicial Interpretation, “Unless there are sound reasons, when the hit TV drama is involved, any ISP shall take any necessary measures within one working day after the notice complying to the laws and regulations; when other works are involved, the term of the necessary measures shall not exceed five working days”. The regulation also has made a provision on the delete time period, which reduce the room of the dilatory tactics.

Bridge IP Law Commentary

Your Guide to China IP Law！

Music Website in China: What Influence from Latest Copyright Law and Judicial Interpretation