Baidu reacts to government pressure to enforce copyright
May 11, 2012 | BY
clpstaff &clp articles &Baidu's placement of a link to the National Copyright Administration on its homepage is a step forward, but the search engine needs to do more to prove its commitment to tackling online infringement
Baidu chose April 26 2012, the 12th World Intellectual Property Day, to launch a link on its homepage to China's National Copyright Administration (NCA). The move was a clear attempt to promote the protection of IP online and comes at the same time as court cases, new Regulations and draft amendments to the PRC Copyright Law (中华人民共和国著作权法) have increased the pressure on internet companies to clean up their act.
“This could become a trend for ISPs, as they want to establish good corporate images,” said Georgia Chiu, of counsel at Hogan Lovells in Shanghai
Last year Baidu was the defendant in a much-publicised case from music companies Sony, Warner and Universal. After mediation, the internet company agreed to pay royalties to the three companies for hosting 128 songs. The case was selected by the Supreme People's Court (SPC) as one of the Top 10 IP Cases of 2011 (2011年知识产权保护十大案件发布).
The SPC released Provisions on Several Issues Concerning the Application of the Law in Trials of Civil Dispute Cases of Infringement of the Right of Dissemination over Information Networks (关于审理侵犯信息网络传播权民事纠纷案件适用法律若干问题的规定 (征求意见稿)) in April this year.
“The Provisions have been encouraging developments over the liability of ISPs,” says Sting Wu, an attorney at Chang Tsi & Partners based in Shanghai. He pointed out that they underline internet service providers' (ISPs') liability over the content of their websites.
The provisions were released just after the NCA produced the draft amendments to the PRC Copyright Law (中华人民共和国著作权法).
The Regulations clarify Article 69 of the Copyright Law, which does hold Baidu and other internet service providers liable, because the article is “too general, too difficult to operate and creates uncertainties” said Chiu. Under Article 18 of the Regulations though, once an ISP receives a notice of infringement from right owners they must remove the infringing content from their website within one to five days, depending on the circumstances, explained Chiu.
Failure to comply or repeat infringement results in statutory damages under the Copyright Law. At present this stands at a maximum of Rmb500,000 ($79,224) but the proposed amendments would double that amount to Rmb1,000,000 ($158,448).
As the current maximum is rarely enforced, it fails to deter ISPs from taking action themselves. “There are several issues explaining why the courts are reluctant to award higher damages,” said Sting Wu, an attorney at Chang Tsi & Partners in Shanghai. “These include government policy and the legislation understanding the safe harbour principles, which defines when and how information may be published. Other countries are also reluctant to award higher damages,” added Wu.
Another case from the SPC's Top 10 highlights this reluctance. Taobao hosted an online retailer that infringed upon a Korean fashion company's trademark – Teenie Weenie. The Court found Taobao and the infringing party both liable and awarded compensation of Rmb10,000 ($1,585).
Taobao had been made aware of the infringing products, but failed to take action. The decision shows Taobao's responsibility as an internet service provider, but the damages awarded were minimal. “Higher damages would serve as a good deterrent for infringers and an incentive for ISPs to take proactive measures and act swiftly to combat infringing activities,” said Chiu.
While Baidu's link and recent legislation are encouraging steps, time will tell how committed ISPs and courts are committed to tackling online infringement.
A feature article analysing the Top 10 IP Cases of 2011 will appear in the June issue of China Law & Practice
By David Tring
Further reading:
PRC Copyright Law (中华人民共和国著作权法)
Supreme People's Court, Annual Report on Intellectual Property Cases (2010) (Abstract)
最高人民法院知识产权案件年度报告 (2010) (摘要)
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