Several Issues Concerning the Laws Applicable to the Trial of Copyright Disputes Involving Computer Networks Interpretations

Revised in January 2 2005. Latest revision can be founded at: http://www.chinalawandpractice.com/Article/1692382/Web-Only-Translation-Several-Issues-Concerning-the-Application-of-the-Law-in-Trials-of-Copyright.html

(Promulgated by the Supreme People's Court on December 19 2000 and effective as of December 21 2000.)

Pursuant to the provisions of such laws as the Civil Law General Principles, the Copyright Law and the Civil Procedure Law, the following interpretations of several issues concerning the laws applicable to the trial of copyright disputes involving computer networks are rendered in order to correctly hear such cases:

Article 1: Copyright infringement cases involving networks shall fall within the jurisdiction of the people's court of the place where the infringement occurred or where the defendant has his domicile. The place where the infringement occurred shall include the place where such equipment as the network server and computer terminal involved in the alleged infringement is located. If the places where the infringement occurred and where the defendant has his domicile are difficult to determine, the place where such equipment as the computer terminal on which the plaintiff discovered the infringing content is located may be deemed to be the place where the infringement occurred.

Article 2: Works protected by the Copyright Law include digital versions of the various types of works specified in Article 3 of the Copyright Law. The people's courts shall afford protection to results of intellectual creation that, in a network environment, are impossible to classify under the works enumerated in Article 3 of the Copyright Law but that are unique in the field of literature, art or science and that can be reproduced in a tangible form.

The provisions of Article 10 of the Copyright Law concerning the rights included in copyright apply to copyright in digital works. The transmission of a work to the public by means of a network falls under the means of using a work provided for in the Copyright Law. The copyright owner has the right to use or permit a third party to use his work in such manner and the right to obtain remuneration therefrom.

Article 3: No infringement is constituted if a website republishes or excerpts a work that has been previously published in a newspaper or periodical or transmitted on a network and pays remuneration and indicates the source in accordance with relevant provisions, unless the copyright owner has declared, or the network service provider that uploaded such work has declared, at the behest of the copyright owner that such work may not be republished or excerpted. However, if the website's republication or excerpting of such work exceeds the scope within which works may be republished by newspapers or periodicals, such act shall be deemed an infringement.

Article 4: If, by way of its network, a network service provider participates in, incites, or assists in, copyright infringement by a third party, the people51s court shall pursue the joint liability for infringement of the network service provider and the other perpetrator(s) or the person that directly committed the infringement, pursuant to Article 130 of the Civil Law General Principles.

Article 5: If a network service provider that provides content services is well aware that a network subscriber has used its network to infringe upon a third party's copyright, or the copyright owner has submitted a substantiated warning but the network service provider fails to take such measures as removing the infringing content so as to eliminate the consequences of the infringement, the people's court shall pursue the joint liability for infringement of the network service provider and the network subscriber pursuant to Article 130 of the Civil Law General Principles.

Article 6: If a network service provider that provides content services refuses, without just cause, the request of a copyright owner to provide information on an infringer's registration with its network so as to pursue such infringer's liability for infringement, the people's court shall pursue the network service provider's attendant liability for infringement pursuant to Article 106 of the Civil Law General Principles.

Article 7: If a copyright owner discovers infringing information and issues a warning to the network service provider or requests information on the infringer's registration with the network but fails to provide proof of his own identity, proof of his copyright ownership or proof of the infringement, he shall be deemed not to have issued a warning or not to have made a request for the said registration information.

If the network service provider still fails to take measures after the copyright owner has provided the aforementioned proof, the copyright owner may, at the time he institutes proceedings, apply to the people's court for a provisional ruling to cease the infringement and interference and eliminate the effects. The people's court shall grant such application.

Article 8: If a network service provider takes such measures as removing allegedly infringing content after being issued a substantiated warning by the copyright owner and the alleged infringer claims liability for breach of contract against the network service provider, the people's court shall reject such claim.

If the copyright owner's allegation of infringement is false, and the alleged infringer claims damages for the losses incurred due to the measures taken by the network service provider, the people's court shall order the party that issued the warning to assume the liability for damages.

Article 9: When hearing copyright infringement cases involving networks, the people's court shall respectively apply the following laws, depending on the differing circumstances of the cases:

(1) when determining infringement of such moral rights in a work as the right of publication, the people's court shall apply Items (1), (2), (3) and (4) of Article 45 of the Copyright Law;

(2) when determining infringement of the right to use a work by disseminating such work to the public, the people's court shall apply Item (5) of Article 45 of the Copyright Law;

(3) when determining infringement of the right to receive remuneration, the people's court shall apply Item (6) of Article 45 of the Copyright Law;

(4) when determining the infringement of the neighbouring rights of an audio or video producer, performer or radio or television organization or determining whether the willful removal or modification of copyright information resulting in infringement constitutes infringement, the people's court shall apply Item (8) of Article 45 of the Copyright Law;

(5) when determining the plagiarizing of another's work, the people's court shall apply Item (1) of Article 46 of the Copyright Law.

Article 10: When determining the measure of damages for an infringement, the people's court may, at the request of the injured party, arrive at such amount either by calculating the direct financial losses incurred by the injured party due to the infringement and his lost anticipated due benefits; or by calculating the benefits obtained by the infringer as a result of its infringement. If the infringer is unable to substantiate his costs or necessary expenses, the revenue he derived from the infringement shall be deemed the benefits he obtained.

If the losses incurred by the injured party cannot be determined, the people's court may, at the request of the injured party, determine the measure of damages as an amount of no less than Rmb500 and no more than Rmb300,000, and in any event not exceeding Rmb500,000, depending on the circumstances of the infringement.