The Supreme People's Court's Take on Copyright Liabilities for ISPs
March 31, 2004 | BY
clpstaff &clp articles &The Supreme People's Court has given some opinions on liability for infringement in cyberspace, and the responsibility that internet service providers bear in transmitting infringing content.
By Ju Deng Los Angeles, California
China has seen exponential growth in the number of internet users and service providers over the past decade. As of December 31 2003, there were 79.5 million internet users (with 17.4 million users accessing the internet via broadband), which constituted an increase of 34.5% from 2002. At the same time, the number of URLs increased at an unprecedented rate. An increase of 60.3% in website addresses from 2002 brought the number to 596,000 by the end of 2003.1
Advances in technology and its applications in business often point up the shortcomings in the regulatory and legal environments. In cyberspace where the barriers to infringement are few, copyright ownership is one of the most frequently discussed issues in China. So much so that anti-piracy campaigns have set the tone for copyright law developments in the internet sphere. Pending the strengthening of legal protections for copyright owners in the internet area, service providers2 have expressed their concerns over the one-sidedness of existing attitudes and practices on liability and where liability actually lies.
In China, the Supreme People's Court's Several Issues Concerning the Laws Applicable to the Trial of Copyright Disputes Involving Computer Networks Interpretation (最高人民法院关于审理涉及计算机网络著作权纠纷案件适用法律若干问题的解释)(the ISP3 Interpretation) is a curious effort to balance the competing interests between copyright owners and internet service providers (ISPs). The interpretation was first issued in December 2000, and was amended in January 2004 to cover circumvention technologies. (An article was added to the 2004 revision of the interpretation that makes explicit that if an ISP uploads, broadcasts or provides methods or equipment that it knows are used to avoid the technical protection measures used to safeguard other's copyrights, then civil liability for infringement will be pursued.) The Supreme People's Court, Several Questions on the Application of Law in Trial of Copyright Civil Dispute Cases Interpretation (issued in October 2002, the Copyright Civil Dispute Cases Interpretation), although not covering ISP liabilities, introduces duty of care as the basis for the liability of publishers. The SPC's interpretations are illustrative of the changing legal landscape in light of the exigency of online copyright infringement.
General Concepts: An Overview of US Law
US trial courts were the first to lay down laws on ISP copyright liabilities.4 The US courts found essentially that the classification of liabilities of service providers was direct, contributory and vicarious. Contributory liability was further incorporated in the Digital Millennium Copyright Act (DMCA, which was signed into law in October 1998) (Section 512, Title II). The DMCA contains the first codification of ISP liabilities in the world.
Direct Liability
Direct liability may arise where the ISP initiates the posting of the copyrighted work.5 In contrast to intermediate, that is, contributory and vicarious liabilities, direct liability is not based on the infringing conduct of a user. In addition, since copyright law is as a general rule a strict liability statute, knowledge is not a factor in determining direct liability. Therefore, the law of direct liability pursues an objective line of analysis where the causal relationship between acts and results is determinant.
Ascertaining direct infringement often involves right-to-right analysis because copyright always boils down to specific exclusive right. For example, reproduction may well turn on whether transitional storage on the system, or even a computer's random access memory (RAM), constitutes making copies,6 and with regard to distribution right, whether transmission to other servers constitutes distribution.7
Intermediate Liabilities
Even though the infringing content resides on the network at the direction of a user, ISP liabilities may still ensue. Compared with direct infringement, contributory and vicarious infringements are subject to much simpler analyses that do not involve singling out exclusive rights.
According to case law, the elements of contributory liability are an ISP's knowledge of the infringing activity, and an ISP's acts such as inducing, causing or materially contributing to the infringing conduct of another party.8 Under the DMCA, absence of knowledge is restated as a major exempting factor. The other factors are expeditious removal or disabling of access to the material, and in the presence of control, the fact that an ISP does not receive any financial benefit.9
It is worth noting that Section 512 of the DMCA covers "Limitations on Liability Relating to Material Online". This area of coverage is rare in a highly pro-industry statute like the DMCA. As far as vicarious liability is concerned, knowledge is not a factor. It is difficult to prove because it requires, aside from the "right and ability to control", direct financial benefits to have accrued. In reality, ISPs usually do not reap financial benefits from the services of uploading or transmitting infringing content per se.
The safe harbours under the DMCA are tailored for contributory liability only. The fair use exemptions of the copyright law that would in all likelihood be asserted by a principal infringer are equally available to an ISP in all three types of charges.
The multi-layered liability framework in effect furnishes a copyright owner with the greatest leverage in making her case. It is especially attractive in light of an integrated remedy system
This premium content is reserved for
China Law & Practice Subscribers.
A Premium Subscription Provides:
- A database of over 3,000 essential documents including key PRC legislation translated into English
- A choice of newsletters to alert you to changes affecting your business including sector specific updates
- Premium access to the mobile optimized site for timely analysis that guides you through China's ever-changing business environment
Already a subscriber? Log In Now