On December 26, 2012, the Supreme People’s Court issued “Provisions Concerning the Application of Laws in the Trail of Disputes With respect to Infringement of the Right to Dissemination Online” (these “Provisions”), which has come into force on January 1, 2013. These provisions focus on the tests with which to judge whether an Internet Service Provider’s (the “ISP”) shall bear legal responsibility, specifically as follows:
1. The provision of works per se constitutes an infringement (direct infringement)
Article 4 of these Provisions specified that the provision of works per se constitutes an infringement, which includes uploading works to web server, setting files for sharing, and provision of works with sharing software, etc.
However, if provision of works by way of “cache” or thumbnail, which neither interferes with the normal u
2. Assistance act during provision of services constitutes an infringement (indirect infringement)
Article 7 of these Provisions specifies that, while providing internet services, if an ISP induces or encourages internet users to infringe the right to dissemination online, by methods of wording, recommendation of technical support, or grant of bonus credits, it will be deemed as an instigation of infringement; if an ISP definitely knows or should have known that an internet user is utilizing its services in infringement, however it fails to take necessary measures, including deleting, blocking, or disconnecting internet linkages, or even provides technical support for such infringement, it will be deemed as an assistance of infringement
3. The test of “should have known”
In addition to “knowing”, these Provisions specify the mind status of “should have known” as an assistance of infringement. Article 9 of these Provisions provides that, for the purpose of determining whether the ISP is at the status of “should have known”, the court shall consider the following aspects as a whole: (1) the nature and mode of services provided by the ISP, the possibility that such services may trigger infringement, and the information management capability that the ISP should have; (2) the type and popularity of the works, performances or audio-video products disseminated, and the obviousness of such infringement; (3) whether the ISP has taken the initiative to select, edit, modify or recommend the works, performances or audio-video products in question; (4) whether the ISP has taken positive and reasonable measures for prevention of such infringements; (5) whether the ISP has an easy to access way for infringement complains, and timely and reasonable responses to such complains; (6) whether the ISP has taken reasonable measures against an internet user’s repeated infringements; and (7) other relevant factors.