The “Provisions of the Supreme People’s Court on Several Issues Concerning Application of Law in Adjudication of Civil Dispute Cases Related to Infringement of the Right of Communication over Information Networks”(the “Provisions”), which were approved on November 26, 2012 and became effective from January 1st 2013, are meant to provide guidelines to Courts at various levels in China on the trial of civil disputes involving infringement of the right of communication over information networks (RCINs).
The 16-article “Provisions” are the China Supreme Court’s legislative efforts (in the form of an “Interpretation”) in coping with the upsurge of civil disputes involving infringement of RCINs.
The “Provisions”, which replaced the previous “Interpretation of the SPC on Certain Issues Related to the Application of Law in the Trial of Cases Involving Computer Network Copyright Disputes”, are welcome for clarifying issues including (1) jurisdiction; (2) definition of information networks; (3) circumstances constituting infringement of RCINs; and (4) liabilities of network service providers (NSPs).
Article 15 of the “Provisions” provides that “the People’s Court has jurisdiction over civil disputes concerning infringement of RCINs in the places where the infringing acts are committed or where the defendant has his domicile. The places where the infringing acts are committed include the places where network servers, computer terminals and other equipment used for carrying out infringement acts are located. Where it is difficult to determine the place where neither the infringing acts are committed nor the defendant has his domicile or where such places are overseas, the place where the computer terminal or other equipment with the plaintiff-detected infringing content is located may be deemed the place where the infringing acts are committed.”
Definition of information networks
Article 2 of the “Provisions” defines “information network” as “ computer internets, radio and television broadcasting networks, landline telecommunication networks, mobile communications networks as well as other information networks using electronic devices, such as computers, television sets, landline telephones and mobile phones, etc., as terminals, as well as local area networks (LAN) open to the public.
Circumstances constituting infringement of RCINs
Article 3 of the “Provisions” specifies that:
“where a network user or NSP provides to the public over information networks, without permission, a work, performance, audio and video work in which right holders enjoy RCINs, unless otherwise stipulated by laws and administrative regulations, the People’s Courts shall find that such network users and NSPs have committed an infringement of RCINs.
“where a work, performance, audio and video recording is placed on a publicly-accessible information network through uploading to network servers, configuration as shared files or the use of file-sharing software such that they become available to the public via downloading, browsing or other means at the time and location that can be decided by individuals, the People’s Courts shall determine that such acts of the network users and NSPs constitute an “act of providing” as provided in the preceding paragraph.”
Liabilities of network service providers (NSPs)
The “Provisions” focus among other things on defining the liability of the NSPs in terms of different circumstances. The “Provisions” clearly state at the very beginning (Article 1) that its legislative purpose is that the Courts, when adjudicating civil disputes related to the infringement of RCINs and exercising their discretion, shall strive to balance the interests of the right owners, NSPs and the public. In another word, when it comes to the matter of liability, the NSPs shall bear their proper share of liability, and should not be overburdened.
The “Provisions” define the NSP’s liability in accordance to different circumstances:
- where a NSP has provided, without permission, a work, performance, audio and video work in which a right holders enjoy RCINs, by himself or via division of labour and cooperation with another party, the People’s Courts shall find that the NSP’s act constitutes direct infringement of RCINs, unless otherwise stipulated by laws and administrative regulations,;
- where a NSP, without conducting the “act of providing” as provided in Article 3, induces or assist a network user to commit an infringement of RCINs during the course of providing network services, the People’s Court shall find the NSP’s act constitutes indirect infringement of RCINs and order NSP to undertake joint and several liability.
As regard to the circumstances of indirect infringement of RCINs conducted by a NSP, the “Provisions” further specify that:
- where a NSP induces or encourages a network user to commit the act of RCINs infringement by means such as words, promotion of technical support, rewarding points, etc., the People’s Court shall determine that such NSP has committed the act of aiding and abetting infringement;
- where a NSP clearly knows or ought to know deleting, shielding, disconnecting the links concerned, or the NSP continues to provide the user with technical support or any other assistance, the People’s Court shall determine that such NSP has committed the act of assistance of infringement.
The “Provisions” also stipulate in Article 8 that “the People’s Court shall determine whether the NSP shall undertake liability for aiding and abetting or assistance based on the fault of the NSP. The fault of the NSP shall be determined by whether the NSP clearly knew or ought to have known the network user’s infringement of RCINs.
Where the NSP fails to proactively audit a network user for infringement of RCINs, the People’s Court shall not regard such failure as a basis for determining that the NSP has fault.
Where the NSP can prove that it has taken reasonable and effective technical measures but it is still difficult to detect infringements of RCINs, the People’s Court shall determine that the NSP has committed no fault.”
The “Provisions” also list seven factors that a Court may take into account in determining that an NSP ought to know the infringement.
The “Provisions”, will no doubt serve as an important guidance for Courts throughout China in hearing the civil disputes related to infringement of the right of communication over information networks. Nevertheless, they still leave certain intricate issues such as P2P file sharing untouched. We could only hope that these issues may be addressed sooner than later.