I. To legally determine the fault ascertainment standard of Safe Harbor Rule
Ms. Zhang suggested to drafted the standard of “known or shall be known” as the legal standard of the ISP fault ascertainment, meanwhile, the obligation of ISP shall also be listed in the modified law while no too high obligation shall be set.
Bridge IP Law Commentary’s opinion: There’s no legal standard on the ascertainment of ISP fault in Copyright Law, with the standard is referred to partly in the Article 36 of Infringement liability law, “Where no measures have been taken by IPS on knowing the infringement or violation by users against others, the ISP shall take the joint liability with the infringer.”
Though no specific legislature on the standard, it’s detailed regulated in the Guide to Several Issues concerning the Hearing of Cyber Copyright Dispute (the “Guide”):
“For the judgment on the fault of the ISP on the service of cyber information storage, web search, internet links, P2P, the court shall examine whether the provider is known or shall be known for any bad consequence from its conduct. And the “known or shall be known” shall be based on the foreseeability and foreseeing scope of the ISP, and shall also distinguish the normal and professional forseeability.
The known or shall be known of the ISP for the bad consequence from its conduct shall normally refer to its known or shall being known other’s broadcast of the charged works, performance or video and film products through ISP’ s service.
The “known” of the ISP shall refer to the knowledge on the existing of the infringement; the “shall be known” of the ISP shall refer to the obvious infringement which shall naturally arouse the attention of the ISP on any possible infringement.
However such regulations are to specific and only binding for its guide in Beijing. We think once the modification could involve the essence of such regulations, the protection and promotion of the internet industry shall be benefited.
II. To determine the liability of ISP and limit the re up-loading of the infringing works
Ms. Zhang suggests once the ISP provide the same infringing works again after the notice of the copyright owner and the showing of its certificate, it could be directly determined the direct infringement liability of the ISP and whereby no reference to Safe Harbor Rule.
Bridge IP Law Commentary’s opinion: In the judicial practices in China, the safe harbor rule is no longer applied in the infringement of repeat uploading of infringing works, while it’s still argued for the same situation for search engine and BBS. For the settlement on the problem remains difficult, we feel it could hard be settled through the modification for once.
III. To increase the compensation and add the punitive compensation
Ms. Zhang suggests to take the license fee as the calculation of the copyright infringement compensation standard, namely basing on the royalty, in order to cover the actual losses of the copyright owner. As to the specific regulations, the provision of the “reasonable license fee” in Patent Law could be the reference, and such regulations could be the legal compensation basis second to the standard of “actual losses”. Furthermore, the highest compensation sum of 1 million yuan could also be added into the modified law.
Bridge IP Law Commentary’s opinion: The biggest problem in copyright lawsuit is the inadequate compensation, for it could hardly cover the actual losses of the infringed party, which “encourages” the piracy and infringement, because it’s known to the infringer that the compensation could not rival with their gains from the infringement. On the other hand, take the cyber video as the example, the purchase of the copyrighted video could cost millions or tens of millions yuan, however, such consideration seems to be unnecessary before the poor compensation.
Therefore the introduction of higher compensation and punitive compensation is necessary and urgent.
IV. To judicialize and regularize the combat on cyber copyright infringement
Ms. Zhang Kangkang suggest to encourage the right protection lawsuit, and thereby the ISP shall provide the information of the infringer when the infringed party provide the due document. And in the situation where the infringement place or the defendant domicile could hardly be determined, the place where the computer terminal is set could be the infringement place, moreover, the doctrine of to plaintiff shall also be introduced. As to the completion on the evidence collection, the cyber infringement examination system, expert witness system and technology investigation system shall also be set up.
Bridge IP Law Commentary’s opinion: We have expressed our opinion in past post that the best way to combat infringement is the lawsuit, while the widely adopted methods is the administrative combat initiated by organs like public security department, despite its obvious effect, it could hardly last for long, and what’s more the infringement may resurgent shortly afterwards. As to the lawsuit, it’s the active method for right protection, and once the compensation could be high enough to stop the infringement, the incentive for right protection could be sharply increased, and then there could be no necessity to initiate the periodical action.
For the information disclosure on the infringer, the infringed may encounter the difficulty on right protection when anonymous slander for no information of the infringing one could be got, therefore the mandatory disclosure could relieve the embarrassment. Meanwhile, with the introduction of the system of evidence collection, examination and expert witness, the evidence collection and proof on infringement could also be more convenient.
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Author: Mr. Albert Chen
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.