*Web Only Translation - Several Issues Concerning the Application of the Law in Trials of Copyright Disputes Involving Computer Networks Interpretations (Revised)

(Promulgated by the Supreme People's Court on January 2 2005 and effective as of January 7 2005.)

SPC Interpretations [2004] No.1

Pursuant to the provisions of such laws as the Civil Law General Principles, the Copyright Law (著作权法)and the Civil Procedure Law(民事诉讼法), 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 (著作权法). 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 (著作权法)but that are unique in the field of literature, art or science and that can be reproduced in a tangible form.

Article 3: No infringement is constituted if a work that has been previously published in a newspaper or periodical or disseminated on a network is republished or excerpted on a network and remuneration is paid and the source indicated in accordance with relevant provisions, unless the copyright owner has declared, or a newspaper or periodical publisher or network service provider has declared, at the behest of the copyright owner that such work may not be republished or excerpted. However, if the 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 people's 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 network service provider uploads, disseminates or provides methods, equipment or materials that it is well aware are specially used to deliberately circumventing or cracking the technical protective measures for copyright of others, the people's court shall, based on the claim of the party and specific details of the case, pursue the civil infringement liability of the network service provider in accordance with Item (6) of Article 47 of the Copyright Law.

Article 8: 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 apply to the people's court for a pre-litigation injunction to cease the relevant act and pre-litigation preservation of property and evidence in accordance with Articles 49 and 50 of the Copyright Law or, 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.

Article 9: 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.