The newly-enacted Interpretation of Several Issues Concerning the Laws Applicable to the Trial of Copyright Disputes Involving Computer Networks (the “Interpretation”) dovetails with Chinese Civil Procedure Law to provide specific interpretations of what constitutes infringement and what network service provider's joint liabilities and exemptions are involving copyright disputes. This body of law addresses areas of responsibility not only for an infringing website operator, but also for the network that hosts the site.

1. Jurisdiction
Article 1 of the Interpretation stipulates that cases involving copyright infringement disputes on a network are subject to the jurisdiction of the court in the locality where the infringement takes place or where the defendant resides. This would mean where the network server or computer terminal is located. In cases where the locality of the infringement or residence of the defendant is difficult to determine, equipment such as a computer terminal on which the plaintiff has found the content of the infringement can be considered to be the locality.
2. Digitalization of Works and Copyrights
Article 2 states that works under the protection of the Copyright Law shall include the digital form of all works prescribed in Article 3 of the Copyright Law. Other products of intellectual creation that are not defined in Article 3 of the Copyright Law, but are original creations in literature, art and science and can be duplicated in certain tangible forms, should also be protected by the People's Court.

3. Reproduction Under Network Environment

According to Article 3 of the Interpretation, works that have already been published in newspapers and periodicals or distributed on a network can be reproduced or excerpted without committing infringement if the works have been paid for and the source is specified. Exceptions are where the copyright owner specifically states that the works cannot be reproduced and excerpted without permission.

4. Legal Liabilities of Network Service Providers and the Rights of Copyright Holders

Articles 4-9 of the Interpretation stipulate the legal liabilities of network service providers and the rights of the copyright holders as follows:

(1) Where the network service providers participate in copyright infringement of another party via the network, or instigate or assist others in copyright infringement via the network, the joint liability for infringement of the network service provider and the other parties involved or the party that directly carried out the infringing act may be pursued by the People's Court in accordance with the provisions of Article 130 of the General Principles of Civil Law.
(2) If Internet content providers (ICPs) are fully aware of copyright infringement by their users via the network, or despite warnings from the copyright holder who has adequate evidence, such ICP fails to take measures such as deleting the infringing content in order to eliminate the infringement, the People's Court may pursue prosecution of the ICP for joint infringement with the Internet user.
(3) Where the ICP refuses, without good reason, to comply with a copyright holders request for Internet registration information of an infringing party in order to pursue that party for infringement, the ICP may also be pursued for liability in accordance with the provisions of Article 106 of the General Principles of Civil Law.
(4) If a network service provider uploads, broadcasts or provides methods, equipment or materials that it knows are used specifically to deliberately avoid or destroy the technical protection measures of another's copyrighted material, civil liability for infringement may be pursued.
(5) Upon discovering information related to an infringement, a copyright holder may warn the network service provider or ask for registered online data about the copyright violator. In case of failure to provide proof of identity, a certificate of the copyright ownership and proof of infringement, the warning or request of the copyright holder shall be disregarded. If the copyright holder provides the aforesaid certificates but the network service provider fails to take any action, the copyright holder may, before lodging a suit, apply to the People's Court to take measures to order that the infringing conduct be stopped. As part of that, the copyright holder may have the property and/or evidence preserved or may, when beginning legal proceedings, apply to the People's Court to stop the infringement, remove hindrances and eliminate the impact of the infringement.
(6) Where a network service provider adopts measures to remove the content of the alleged copyright infringement after the copyright holder has given a warning supported with substantial evidence, and the party accused of infringement requests that the network service provider assumes responsibility for a breach of contract, the People's Court shall not make such an award. Where a copyright holder wrongly accuses another party of infringement, and the party accused of infringement sustains losses due to measures taken by the network service provider, and seeks compensation, the People's Court shall order that the party that issued the warning must assume liability for compensation.

As there have been several cases involving copyright infringement on websites, the above Interpretations seek to step up the prevention of such infringement by making ICPs bear responsibility, as well. This has the effect of reducing copyright infringement by shifting some of the responsibility of policing copyright infringement onto those who maintain networks.

-Jeff Shi