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China: Supreme People’s Court Issues Provisions to Aid Interpretation of Internet Copyright Infringement

(Apr. 25, 2012) On April 22, 2012, China's Supreme People's Court (SPC) issued draft provisions for public consultation, available on its website, concerning Internet copyright infringement. The 20-article provisions provide a judicial interpretation of what constitutes such infringement. (Public Consultation on Proposed Internet Copyright Infringement Regulations, CHINA DAILY (Apr. 22, 2012).)

Among other measures, the SPC Provisions on Certain Questions Concerning the Law Applicable to Hearing Cases of Civil Disputes on Infringement of Information Networks' Right to Disseminate Information (Draft for Public Consultation) stipulate that:

  • Internet users and Internet Service Providers (ISPs) that provide online access to literary, performance, audio, or video content without the permission of the copyright holders will be held civilly liable for infringement of copyright (art. 3 ¶ 1);
  • the courts should deem that acts of unauthorized “providing of access” include uploads to the Internet server or the use of other means that place literary, performance, or audio-visual content on a public, open information network, making it possible for the general public to download, view, or otherwise obtain the content (art. 3 ¶ 2);
  • the courts should also deem as constituting acts of unauthorized provision of access the supplying of links or search engine services that enable the public to download the various types of aforementioned content, except where the acts do not affect the normal use of or do not unreasonably harm the holder's lawful rights and interests vis-a-vis the content and the ISP claims reasonable use of the content (art. 5); and
  • where Internet companies voluntarily censor their material and take steps to prevent Internet copyright infringement caused by Internet users, the courts may take this into account in exculpating an ISP from fault (art. 9). (Supreme People's Court, for a Judicial Interpretation of Internet Copyright Protection, Openly Seeks Opinions from All Walks of Life [in Chinese] [hereinafter Draft Provisions], The Supreme People's Court of the People's Republic of China website (Apr. 22, 2012), [includes the text of the draft provisions]; Public Consultation on Proposed Internet Copyright Infringement Regulations, supra.)

The draft provisions also list seven factors that a court may take into account in determining whether or not an ISP knew or should have known that a user had violated another person's right to disseminate information on the Internet, based on the circumstances of the case, the nature and form of the services provided by the ISP, and the possible extent of the resulting infringement. Among these are the ISP's capacity to manage information; the type and repute of the content disseminated and the manifest extent of the infringing information; the circumstances of direct benefits derived by the ISP from disseminating the literary, performance, or audio-visual works; and whether or not the ISP took the initiative in carrying out the selection, compilation, revision, recommendation, etc., of such works. (Draft Provisions, art. 8.)

Other provisions set forth the situations in which the court may determine, based on the circumstances of the case, that an information storage service ISP should have known that the content provided by an Internet user was infringing copyright, as well as the situations in which, if an information storage service ISP changes the conditions of user-provided content, the court will not deem the ISP to be at fault. (Id. arts. 12 & 13).

The draft provisions come in the wake of a 2011 scandal involving the giant Chinese search engine Baidu, in which more than 40 Chinese writers claimed Baidu had “stolen” their work “by publishing it online, and offering free downloads as part of its free literary database Wenku.” (Public Consultation on Proposed Internet Copyright Infringement Regulations, supra.) At first, Baidu said the works had initially been uploaded by Internet users, but it subsequently issued an apology to the authors, took out almost three million items from its document-sharing services section, and promised improved copyright protection measures. (Id.)