Administrative Protection of Internet Copyright in China

HISTORY OF INTERNET COPYRIGHT PROTECTION IN CHINA

On an international level, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) address issues relating to internet copyright protection. Although China is not a signatory to either the WCT or the WPPT, the major principles of these two treaties have been incorporated into the PRC Copyright Law (中华人民共和国著作权法)as amended in 2001.

The PRC Copyright Law (中华人民共和国著作权法)does not set out any specific provisions concerning internet copyright protection. Under Article 58 of the PRC Copyright Law, the State Council is entitled to promulgate relevant regulations for the protection of copyright materials on the internet. However, this State Council regulation is still being drafted. Currently, the Chinese courts rely on the Supreme People's Court's Several Issues Concerning the Laws Applicable to the Trial of Copyright Disputes Involving Computer Networks Interpretations (SPC Interpretation). According to the National Copyright Administration, the Procedures shall be regarded as the legal basis for administrative protection of internet copyright protection in lieu of the State Council passing a relevant regulation. The Procedures may not, however, be used as a legal basis for court proceedings.

SCOPE OF THE PROCEDURES

With regard to the subject matter under the Procedures, Article 2 provides that the Procedures apply to the acts of automatically providing upload, storage, link and search functions for works, audio and video products via the internet according to content providers' instructions without any edition, modification or selection to the stored or transferred contents. The three key factors in determining whether an action is covered under the Procedures are: (1) the ISP/ICP does not take the initiative to obtain the contents; (2) the service is automatically provided by computer programs rather than artificially provided; and (3) no edition, modification or selection has been made to the contents.

If these three factors are satisfied, the act falls within the scope of the Procedures, regardless of the nature of the entity carrying out the acts (ISP, ICP or even the fundamental telecom operator). In other words, any entity conducting these acts, which are more typical for the ISP, is subject to the Procedures (thus entities conducting relevant acts under the Procedures are uniformly referred to as an ISP hereinafter). Nonetheless, the act of directly providing internet content, including aiding and abetting others to conduct copyright infringing acts on the internet, does not fall under the Procedures and should be subject to PRC Copyright Law. It should be noted that 'deep-linking' - namely bypassing a linked home page and directly reaching the specific contents - shall be regarded as directly providing internet content and is thus governed under PRC Copyright Law.

COMPETENT ADMINISTRATIVE AUTHORITIES AND ADMINISTRATIVE JURISDICTION

Pursuant to Article 3 of the Procedures, copyright administrations of each level are responsible for the administrative protection of internet information dissemination rights in the activities of providing information services via the internet. The relevant departments under the Ministry of Information Industry and the telecommunication administrative organizations at the provincial, autonomous region and municipal levels shall cooperate with the copyright administrations in implementing their duties.

Article 4(2) sets out the administrative jurisdiction of copyright infringement cases under the Procedures. It should be noted that only the copyright administration at places where the infringing act is carried out is responsible for administrative protection of internet copyrights. It is further emphasized that places where the infringing act is carried out include the location of the server and other relevant equipment providing internet information services.

NOTIFICATION AND COUNTER NOTIFICATION MEASURES

The Procedures introduce measures of notification and counter notification in order to provide a safe harbour for ISPs. According to Article 5 of the Procedures, an ISP shall immediately eliminate relevant contents upon the receipt of a written notification of infringement from the copyright owner and keep the copyright owner's notification for six months. Meanwhile, Article 7 states that the ISP may also restore the eliminated contents without bearing the administrative liability if the content provider sends a non-infringing counter notification to both the copyright owner and the ISP. The copyright owner's notification shall contain the proof of copyright ownership, the owner's ID and contact information, the internet location of the infringing contents, other relevant evidence and a declaration of the truthfulness of the notification.

The counter-notification sent out by the content provider shall include similar elements as detailed under the notification measures. There are no specific stipulations concerning what constitutes the proof of copyright ownership. The National Copyright Administration takes the view that preliminary evidence, like a copyright registration certificate or manuscript, etc., will suffice. One thing worth mentioning is that an ISP is only under obligation to check the form of the evidence and verify the contact information of both parties.

One problem associated with the notification and counter-notification section is how an ISP or copyright owner can prove the safe receipt of such notification. Email may be employed by parties involved to send notification or counter-notification. However, it is hard to prove whether the notification is safely received by an ISP or successfully sent by a party, and no burden of proof is ever assigned. If it cannot be effectively solved, either the ISP or parties involved could argue the performance of their duties respectively and, therefore, result in a deadlock.

LIABILITY IMPOSED BY THE PROCEDURES ON THE ISP

Two specific requirements set forth in the Procedures need to be satisfied simultaneously before the administrative liability on an ISP can be imposed. Such liability may be imposed if (1) an ISP fails to remove the infringing content with the knowledge of infringement by a content provider, or fails to do so upon the delivery of the notification from a copyright owner, regardless of whether it had knowledge of infringement initially; or (2) the public interest is harmed. The definition of what constitutes public interest is, however, ambiguous under Chinese law. Such a definition in fact exists neither in the Procedures, nor other copyright related laws and regulations. An ISP may argue that a simple copy infringes a copyright owner's right, but the public interest is not harmed. If this is true, then the penalty/liability under the Procedures may only exist on paper, unless it can be argued that the infringement of the copyright itself constitutes harm to the public interest, thus removing the ambiguous second requirement. If liability is identified, then possible penalties may be imposed on an ISP by a copyright administration, in accordance with Article 47 of the PRC Copyright Law. Such penalties include the cessation of the infringing action, the confiscation of illegal earnings and fines of up to three times such earnings, or Rmb100,000 (US$12,000).

Additionally, the Ministry of Information Industry, or the telecommunication administrative organizations at the provincial level, are authorized to penalize an ISP for committing an act stipulated in Article 11 of the Procedures, and identified as piracy by a copyright administration, or if other serious actions are identified. However, such a penalty is based on laws and regulations concerning telecommunications, not that stipulated under the Procedures. Furthermore, the Ministry of Information Industry or the telecommunication administrative organizations at the provincial level have the power to penalize an ISP with a warning and/or a maximum fine of Rmb30,000 if the ISP fails to keep certain records in connection with infringement content; specifically, the content itself, release date and URL or domain name.

In addition to these liabilities provided under the Procedures, a copyright owner may request a copyright administration to penalize an ISP; or a copyright administration may initiate a penalty procedure itself in light of the applicable laws and regulations.

The Procedures also mention criminal liability associated with internet copyright infringement and such a case can be transferred to the criminal investigation department in due course. A copyright infringement criminal may be jailed for a maximum of seven years plus fines. The fine threshold for a copyright crime is Rmb30,000 of illegal earnings.

REMEDIES

If an ISP is not satisfied with the penalty imposed by a copyright administration or other administrative authorities, the ISP may initiate an administrative review procedure or administrative lawsuit against the said administrative authorities in accordance with the PRC Administrative Review Law and the PRC Administrative Litigation Procedure Law.

Administrative liability concerns aside, a copyright owner may initiate a copyright infringement lawsuit against an ISP and a content provider jointly or separately at its sole discretion. While costly in both time and money, such a procedure may be advantageous over an administrative procedure since administrative procedure awards no compensation to a copyright owner.

SAFE HARBOUR

As far as content is concerned, the Procedures are similar to the US' Digital Millennium Copyright Act's 'safe harbor' section. The Procedures launch a safe harbour for an ISP if certain preconditions are satisfied. These include no knowledge of infringement, immediate removal upon notification and liability discharge upon counter-notification.

INTERPLAY BETWEEN THE PROCEDURES AND THE SPC INTERPRETATION

The Supreme People's Court in 2003 issued a new piece of interpretation concerning internet copyright infringement. This interpretation has played a key role in the trial of internet copyright civil disputes. It stipulates several issues in connection with ICPs and ISPs, including jurisdiction, infringement identification, liability and so on, which differ from the Procedures. The Procedures are consistent with the provisions in terms of ISPs in the said interpretation, with the only difference between the two regulations lying in the application phase. The Procedures will be implemented by the administrative authorities on internet copyright cases and the interpretation will be followed by the PRC's courts to handle civil lawsuits.

THE FUTURE

The purpose of enacting the Procedures is to help administrative authorities handle the rapidly increasing number of copyright infringement cases that take place over the internet. However, some problems associated with the Procedures identified in this article may create difficulties in the implementation of the Procedures. These include issues concerning evidence identification by an ISP, the notification and counter-notification receipt issue, and the public interest issue. Any of these may harm the effectiveness of the Procedures.

Furthermore, the recent Grokster decision in the US and the increasing popularity of the P2P model indicate that there may be no ISP or ICP involved in future internet copyright infringement cases. This in itself may pose a big challenge to copyright protection on the internet. Additionally, effective enforcement has been identified as a serious problem in China. Therefore, it will be interesting to see whether the issuance of the Procedures will help resolve internet copyright disputes in China.