Why Wasn’t Baidu Library Protected Under Safe Harbor Principle?

baiduwenku(By Luo Yanjie) In our previous post Baidu Library Ordered to Pay Huge Huge Compensation on for Copyright Infringement, we discussed the amount of the compensation in the case of Beijing China Youth Book Inc. vs Baidu Library. Yesterday, we found out the reasoning and judgment held by Beijing No.1 Intermediate People’s Court. Thus, in today’s post we will analyze the legal basis about this case from the perspective of the judgment.

Introduction to the Case:

Plaintiff: Beijing China Youth Book Inc. (the “Youth Book Inc.”)

Defendant: Baidu

Court of first instance: Beijing No.1 Intermediate People’s Court

No.: (2013)一中民初字第11912号

Youth Book Inc. claimed that Baidu was unauthorized to provide various versions of its three popular books for users of the popular website Baidu Library, on the grounds that it is entitled to the exclusive right to publish these three popular books and also has the exclusive right of communication of information via a network. Youth Book Inc. held that this trial was focused on Kaola Xiaowu’ Studying Diary for English (the “disputed book”).

The defendant Baidu argued that the safe harbor principle should apply, exempting it from its liability. This is because Baidu had immediately deleted the electronic copies of the three books upon the receipt of an infringement complaint from the owner. The safe harbor principle means that any network service provider has an obligation to delete the works that the owner regards as constituting infringement upon being informed of said copyright infringement by the owner. If this is successfully applied, then the network provider can avoid liability for infringement.

The court heard the case and decided that, with respect to Baidu Library, Baidu Library had provided a network service, indirectly infringing the right of communication via an information network owned by the Youth Book Inc. Baidu library is a service that provides online storage where books are uploaded by internet users to the Baidu Library.

Furthermore, the court also held that, even though laws and regulations entitled the network service provider to the safe harbor principle, this does not mean that the network service provider only has the responsibility of ceasing infringement after receiving a written request from the owner.

The three books involved were popular ones in the Baidu Library, and as such, the court considered that Baidu should have sufficient information about them and focus on them. However, in the period from January 2012, when the first document was uploaded, to August 2013 when Baidu acted to spread the documents, Baidu never took action against any infringement.

Concerning whether Baidu must have known the accurate information about the views and downloads of every document, under the current level of technology, when views and downloads of a file have achieved a certain scale, the network service provider could track information related to these popular documents. If there is a likelihood that these documents constituted copyright infringement, the network service provider should contact the uploader to check whether the said document is original, or whether the document is legally authorized by the owner. For these reasons, the court determined that Baidu should compensate 350,000 Yuan to Youth Book Inc.

Lawyer’s Comment:

1.  The decision sets a precedent for direct infringement of a network information storage provider

The right of communication of information via a network has been determined to mean the actions of information network transmission, i.e., making one’s work available to the public by wired or wireless means. Therefore, one must judge whether an act constituted direct infringement of the right of information communication via a network owned by the copyright holder or the holder of similar rights that focus on the act of providing these works. Paragraph 2, Article 3 of the Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law in Hearing Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks stipulates that, a providing act refers to uploading the works, performance, sound or visual recording in the information network to network servers which enable the general public to download, browse or otherwise obtain the same at anytime, anywhere at their discretion. Such a stipulation clearly regulates providing acts as uploading the same to network servers.

In this case, where the disputed book was actually uploaded to Baidu’s network server, Baidu did not perform the acts of uploading. In other words, Baidu has not directly implemented the acts of network information transmission. For these reasons, the court decided Baidu did not constitute direct infringement.

2. The standard of assisting infringement shall be further partial to the right holder.

Article 22 of the Regulations on the Protection of Rights to Information Network Communication regulates that, where a network service provider provides information storage to provide the general public with the works, performance or audio-visual products through an information network, but where the following conditions, such as that the provider knew perfectly well or should’ve known that the infringement occurred, are not met, it shall not be required to assume the liability of compensation.

If the provision is interpreted literally, the acts of Baidu is conform to the statutory conditions for the non-compensation, because Baidu Library hasn’t obtained benefits from spreading the disputed book, or recommended the disputed book, it is unlikely to have constituted the required level of knowledge as expressed in“knowing perfect well or should’ve known the infringement”. However, network copyright infringement is still serious in China. Under the promulgation of the Regulations on the Protection of Rights to Information Network Communication, the Supreme People’s Court and other administrations have also published some relevant interpretations and regulations to judge whether a network service provider undertakes infringement. Despite this, the accepted standard is still that the court shall make a judgment on the grounds of comprehensive set of conditions as a whole.

In this case, concerning the fact that Baidu must have known accurate information about the views and downloads of every document, under the current level of technology, when the views and downloads have achieved certain scale, the network service provider could track information related to such documents. As such, the court decided that Baidu tracing the information related to the aforementioned documents is practicable. However, Baidu has not yet implemented such a system and thus is unlikely to fulfill its reasonable duty of care, resulting in the assumption of liability. This attitude indicates that current judicial practice is further partial to the right holder, even beyond the legislation to some extent. It is undoubtedly an attempt to put forward a stricter requirement for copyright policing on big websites.

 Lawyer Contacts

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

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