On the morning of April 13, 2016, the Beijing High People’s Court published Guidelines for Adjudication of Network-related IP Cases (the "Guidelines"), which standardize the judicial rules applicable to network-related IP cases. The Guidelines are divided into 3 parts with a total of 42 Articles, and provide some guidance for topical and difficult issues in relation to network-related copyright, network-related trademark, and network-related unfair competition disputes.
In the field of the judicial protection of network-related copyright, the Guidelines mainly address matters such as: the allocation of the burden of proof between copyright owners and network service providers; identification of the nature of the act of network service providers; determination of “division of labor” behavior; the relationship between the Guidelines and the constitutive requirements of tort liabilities and corresponding exemption requirements; the fair use of a webpage “snapshot”; and the applicable law regarding online real-time broadcast. In relation to the significant controversy in judicial practice regarding online real-time broadcast, the Guidelines provide that Article 10, paragraph 1, item (17) of the Copyright Law shall be applied in order to determine liability. In relation to the significant controversy regarding the judgment of the act of jointly providing works by way of “division of labor”, the Guidelines put forward a “Dichotomy” of which the intention liaison between the parties and the objective acts conducted by them are taken as the constitutive elements for judges to consider in order to make judgments on the attributes of the relevant behavior.
In the field of the judicial protection of network-related trademark rights, the Guidelines make clear that the principles of balanced interests and reasonable prevention shall be applied in the adjudication of cases. The Guidelines specifically address: the platform service provider’s burden of proof in determining whether or not the act committed by the platform service provider constitutes direct infringement; the identification of effective notifications; the legal consequence of incorrect notifications; the factors determining whether or not the platform service provider “knows” of the infringing act; the determination of whether goods or services provided by application software are identical with or similar to goods or services designated by another’s trademark, etc. Furthermore, the Guidelines affirm that it is the responsibility of the platform service provider to provide proof of the online seller’s detailed information, and stipulate the form, content and legal effect of a notification and the legal consequence of an incorrect notification.
In the field of network-related unfair competition disputes, the Guidelines mainly address six issues, namely: the basic judgment rules; the identification of “publicly recognized business ethics”; the application of Article 2 of the Anti-unfair Competition Law in this field; the specific acts deemed to be false advertising or commercial defamation; the legal regulation of “paid listing services”; and the method for calculating damages. In the adjudication of cases in this field, the interests among business operators, consumers and the general public shall be balanced. Since it is emphasized as a conduct regulating law, the Anti-unfair Competition Law shall play a complementary role to the Patent Law, the Trademark Law and the Copyright Law. The Anti-unfair Competition Law will only be applied in circumstances where sufficient relief is unable to be obtained under the foregoing branches of intellectual property law, and it will be applied on a supplementary basis to provide regulatory power. Furthermore, in order to avoid the arbitrary application of Article 2 of the Anti-unfair Competition Law, the Guidelines specify factors which may be taken into account in determining what amounts to “publicly recognized business ethics”. In addition, in order to unify the law-enforcement standards of cases in this field, the Guidelines make regulations by categories of specific acts of network-related unfair competition based on various types of situations in current judicial precedents, thereby reinforcing the demonstrative effect of and guidance provided by the Guidelines.
In recent years, there has been a rapid growth in the quantity of network-related IP civil cases in Beijing courts at all levels. In 2015, Beijing courts at all levels accepted 13,939 new IP civil cases of first instance with year-on-year growth of 24.1%, which involve a large proportion of network-related IP cases. The publication of the Guidelines is beneficial for Beijing courts at all levels to unify judicial rules for adjudicating network-related IP cases. The Guidelines will also play an important guiding role in network operators’ lawful operation and legal risk avoidance.