Adopted at the 1561st Session of the Judicial Committee of the Supreme People’s Court on November 26, 2012, and came into effect from January 1, 2013.
For the purpose of correctly trying civil disputes of infringement of information network broadcasting rights, lawfully protecting the right of information network communication, promoting the healthy development of the information network industry and maintaining the public interest, according to the General Principles of Civil Law of the PRC, the Tort Liability Law of the PRC, the Copyright Law of the PRC, the Civil Procedure Law of the PRC and other relevant laws and regulations, in combination with civil trial practice, the regulation is made as follows:
Article 1 When trying civil disputes of infringement against information network broadcasting rights, the People’s Court shall give consideration to the interests of the right holder, Internet service provider (ISP) and social public, when lawfully exercising its jurisdiction.
Article 2 The information network referred to in this regulation shall include computer networks, broadcasting networks, fixed communication networks, mobile communication networks and other information network serving terminals, e.g., computers, televisions, fixed telephones, mobile telephones and other electronic devices, and shall also include local area networks open to the public.
Article 3 A network user or ISP’s unauthorized provision of a work, performance, or radio or video recording in which right of information network broadcasting is enjoyed by a certain rights holder, unless otherwise regulated in the relevant laws or administrative regulations, the People’s Court shall find infringement against the right holder’s information network broadcasting right.
For any conduct, like uploading to a network server, setting a document to be shared, or peer-to-peer sharing software or their equivalents, in which a work, performance, radio or video recording is uploaded onto the information network, thereby enabling the public to download, browse or to acquire them by other means at any place or time favorable to them, the People’s Court shall determine such conduct to constitute the infringing provision as regulated in the previous paragraph.
Article 4 If there is adequate proof that an ISP worked in cooperation with others to jointly provide a work, performance, radio and video recording, this shall be held to constitute joint infringement, and the People’s Court shall find the parties to assume joint liability. If an ISP can prove that it has only provided network services through automatic access, automatic transmission, data storage space, search functions, links, document sharing technology, etc., and thereby claims it has not been involved in any alleged joint infringement, the People’s Court shall support its claims.
Article 5 If an ISP provides a webpage snapshot or thumbnail, which has substantially replaced another ISPs’ work made available to the public, the People’s Court shall find it has constituted provision as regulated in the law.
If the conduct of provision regulated in the last paragraph has not influenced the normal adoption of the work, and has not unreasonably damaged the interests enjoyed by the right holder to the work, and the ISP claims it has not infringed the right of information network broadcasting as enjoyed by others, the People’s Court shall support it.
Article 6 If a plaintiff can provide prima facie evidence that the accused ISP has provided the relevant work, performance or radio and video recording, but the defendant ISP can only demonstrate that it has provided information network services, and is therefore without fault, the People’s Court shall not determine such conduct to be infringement.
Article 7 If an ISP incites or assists a network user in exploiting or undertaking any conduct infringing the right of information network broadcasting when providing its network services, the People’s Court shall find the ISP to be liable for any infringement.
If an ISP incites or encourages network users to exploit or infringe against the right information communication by networks by means of diction, support on promotion technology, credit rewards and etc., the People’s ourt shall find such instigation to constitute infringement.
With respect to an ISP’s failure to delete, block, disconnect or take other necessary measures, or providing technological support or other aid when it knows or should have known of the network user’s infringement against the right of information network broadcasting, the People’s Court shall find such aid to constitute infringement.
Article 8 The People’s Court shall decide whether an ISP shall assume infringement liability by instigating or aiding said infringement according to the fault of the ISP. The fault of the ISP includes knowing, or situations where it should have known of the network user’s infringement against another’s information network broadcasting right.
If an ISP fails to actively check infringing activity conducted by its network users, the People’s Court shall not determine it to be at fault.
If an ISP can prove it has adopted fairly reasonable and effective technological measures, in spite of the difficulty in discovering infringement against information broadcasting by networks as conducted by the network user, the People’s Court shall determine it to be without fault.
Article 9 The People’s Court shall determine whether an ISP was aware of infringing activity according to the obviousness of the facts in question in regard to infringement against one’s information network broadcasting right; in addition, the People’s Court shall consider the following elements:
(1) The information management capacity matches the essence of the ISP’s services, methods and the possibility that infringement would occur;
(2) The type, popularity and degree of obviousness of the infringed information concerning the transmitted work, performance, and radio and video recording;
(3) Whether the ISP has actively chosen, edited, modified or promoted the work, performance, and radio and video recording;
(4) Whether the ISP has actively taken measures to prevent the infringement;
(5) Whether the ISP has designed a convenient process to receive notices of infringement and has made timely responses to said infringement notices;
(6) Whether the ISP has taken proper and reasonable measures to repeated infringements conducted by the same network user;
(7) Other related elements.
Article 10 If an ISP promotes popular video and film works through a set list, catalogue, reference, descriptive paragraph, briefing or other means when providing its network services, and the public may download, browse or acquire them through other means directly from ISP’s webpage, the People’s Court may find that the ISP knew of the network user’s infringement against the information network broadcast rights of another.
Article 11 If an ISP has gained economic benefits from the network user’s providing of a work, performance, radio or video recording, the People’s Court shall determine it requires a higher degree of due care concerning any possible infringement against the information network’s broadcast rights as conducted by the network user.
If an ISP provides advertisements for a specific work, performance or radio and video recording and thereby gains profit, or gains other economic profits specifically related to the work, performance, or radio and video recording as transmitted by the ISP, it shall determine that it constitutes the acquisition of the economic profits as stipulated in the previous paragraph. If the ISP charges routine advertising or service fees for its provision of the network service, such gains shall not be included in the meaning of “economic benefit” as defined in the preceding paragraph.
Article 12 For the following situations, the People’s Xourt, in judging the specific facts in each case, may determine that an ISP who provides a storage space service shall be aware of a network users infringement against another’s information network broadcasting right:
(1) Placing popular films and television shows on the home page, other main pages or other places that would be easily discovered by an ISP;
(2) Actively choosing, editing, arranging, recommending as topics of popular films and television shows, or setting a special ranking system for such;
(3) Other situations where an ISP fails to take proper measures where it is obvious the relevant work, performance, or radio and video recording has been provided without the requisite license.
Article 13 If an ISP fails to take necessary measures like deleting, blocking or timely disconnection of infringing material upon the reception of notice sent from right holders through posted mail, fax, e-mail or other means, the People’s Court shall determine the ISP knew of the existence of the infringement against another’s information network broadcasting rights..
Article 14 For the People’s Court’s decision on the timely cancellation, blocking, disconnection or other necessary measures taken by the ISP, it shall comprehensively consider the means of the notice sent by the rights holder, the accuracy of the notice, the difficulty of the measures to be taken, the essence of the network service, and the type, popularity and amounts of the work, performance or radio & video recording involved.
Article 15 The civil infringement disputes against the information network broadcasting right shall be under the jurisdiction of the court in the place where the infringement occurred, or located at the residence of the defendant. The place where the infringement occurred includes the places located on the network server, computer terminal or other equipment by which the infringement was implemented. When either the place the infringement occurred or the residence of the defendant is difficult to be determined, or outside the territory of the PRC, the place located by the computer terminal in which the plaintiff discovered the infringement may be deemed the place where the infringement occurred for the purposes of determining jurisdiction.
Article 16 From the date of implementation of this regulation, the Interpretation on Several Issues concerning the Application of Law in Hearing Computer Network Copyright Disputes by the Supreme People’s Court (Fa Shi  No.11) shall be abolished at the same time.
For those civil cases concerning the infringement against the information network broadcasting right not finally judged before the implementation of this regulation, they shall be heard under the articles of this regulation. For those that have been finally judged before the implementation of this regulation, if the parties involved apply for a review of the case, or it is decided that it will be reheard under trial supervision procedures, then they shall not apply this regulation.
This regulation is translated by Mr. Albert Chen
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