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| China releases regs for online copyright disputes |
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| Publish Time：2005-5-18 9:19:25 |
China releases regs for online copyright disputes
(2 January 2001) Supreme People's Court of China released its interpretations of laws on solving online copyright disputes on Dec. 20, 2000, which took effect one day later. The full text of the interpretations appeared in the Dec. 20, 2000, Renmin Ribao(People's Daily). "Interpretations of the Supreme People's Court on Laws For Trying Cases Involving Internet Copyright Disputes"(Adopted at the 1144th session of the Judicial Committee of the Supreme People's Court on Nov. 22, 2000)
To appropriately try cases involving Internet copyright disputes, presented here are interpretations of a number of related legal issues in accordance with provisions in the "General Rule of the Civil Law," the "Copyright Law" and the "Law of Civil Procedure."
Article 1: Cases involving copyright infringement disputes on the Internet are subject to the jurisdiction of the court in the locality where the infringement takes place or where the defendant resides. The locality where the infringement takes place refers to the venue where the equipment of the alleged infringement, such as the Internet server or the computer terminal, is located. In cases where the locality of the infringement or where the defendant resides is hard to determine, equipment such as a computer terminal on which the plaintiff has found the content of the infringement will be considered as the locality for the infringement.
Article 2: Works under the protection of the "Copyright Law" include the digital form of all works prescribed in Article 3 of the "Copyright Law." Other products of intellectual creation that are not defined in Article 3 of the "Copyright Law," but are original creations in literature, art and science and can be duplicated in certain tangible forms, should also be protected by the People's Court. Provisions pertaining to copyrights in Article 10 of the "Copyright Law" are all applicable to the copyrights of digitized works. Public dissemination of works via the Internet is permitted by the "Copyright Law." The copyright holder has the right to use or permit others to use the works in such a manner and be remunerated.
Article 3: For works that have been published in newspapers and magazines or disseminated on the Internet, except where the copyright holder or the Internet service provider clearly states that the works shall not be carried and extracted, Web sites do not constitute a copyright infringement if they recarry and extract such works, make payment and provide sources in accordance with related regulations. However, a Web site that recarries and extracts works beyond the scope as prescribed for reprinting in newspaper and magazine articles shall be considered copyright infringement.
Article 4: For ISPs who participate in copyright infringement via the Internet, or instigate or assist others in copyright infringement via the Internet, the People's Court shall hold them responsible for their share of the infringement in accordance with provisions in Article 130 of the "General Rule of the Civil Law."
Article 5: If Internet content providers (ICPs) are fully aware of copyright infringement by their users via the Internet, or despite warnings from the copyright holder who has adequate evidence, fail to take measures such as deleting the content involving copyright infringement in order to avoid charges of infringement, the People's Court shall, according to provisions in Article 130 of the "General Rule of the Civil Law," investigate and affix the responsibility for their joint infringement with the Internet user.
Article 6: For ICPs that refuse, in the absence of convincing reasons, to provide the online registered data about a suspected copyright violator as requested by a copyright holder to investigate and affix responsibility for the violation, the People's Court shall, in accordance with provisions in Article 106 of the "General Rule of the Civil Law," investigate and affix responsibility for their part in the infringement.
Article 7: The copyright holder, upon discovering information related to an infringement, must warn the ISP or ask for registered online data about the copyright violator. In case of failure to provide proof of identity, a certificate of the copyright ownership and proof of infringement, the warning or request of the copyright holder shall be considered invalid. If the copyright holder provides the aforesaid certificates but the ISP fails to take any action, the copyright holder may take legal action to the People's Court to order the ISP to stop the infringement. The People's Court shall grant approval.
Article 8: If the ISP takes measures such as deleting the content in question upon the warning of the copyright holder who has adequate evidence, and the accused party demands the ISP to bear responsibility for contract violation, the People's Court shall not grant approval. If the copyright holder makes a false accusation of infringement and the accused party suffers losses due to measures taken by the ISP and thus demands compensation, the People's Court shall rule that the party giving the warning should bear the responsibility for compensation.
Article 9: During the trial of cases involving online copyright-infringement disputes, the People's Court should apply the following laws in light of the different circumstances of each case. To verify infringement of personal copyrights such as the right for publication, provisions in Clause 1, 2, 3 and 4 in Article 45 of the "Copyright Law" shall be referred to. To verify infringement of the right to use works through public dissemination, provisions in Clause 5 in Article 45 of the "Copyright Law" shall be referred to. To verify infringement of the right to remuneration, provisions in Clause 6 in Article 45 of the "Copyright Law" shall be referred to. To verify infringement upon the rights of audio-visual product makers, performers, and radio and television organizations, provisions in Clause 8 in Article 45 of the "Copyright Law" shall be referred to. To verify plagiarism, provisions in Clause 1 in Article 46 of the "Copyright Law" shall be referred to.
Article 10: To determine the appropriate amount of compensation for the infringement, the People's Court may, according to the request of the infringed party, calculate the amount by considering direct economic losses and anticipated interest lost due to the infringement. The amount of compensation can also be calculated based on how much the copyright violator profited from the infringement. If the guilty party is unable to prove its costs or necessary expenses, its income from the infringement should be considered its profit. If the amount of the plaintiff?|s losses cannot be determined, the People's Court may, according to the plaintiff?|s request, determine the amount of compensation is between 500 renminbi (US$64) and Rmb 300,000 (US$36,241). The compensation shall not exceed Rmb 500,000 (US$60,401).
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