Intellectual Property
Searching for Liability: Online Copyright Infringement in China
By Lisa Wang
lwang@iprights.com
The digital copying of music, images, and video, and their distribution over the internet can provide hours of entertainment for the general public and multiple migraines for rights holders. Intellectual property owners such as record labels and film distributors have scrambled to maintain control over the effortless replication and dissemination of their copyrighted digital content.
Google, Yahoo, YouTube – Intermediary Copyright Infringement
Since it is neither efficient nor lucrative to go after individual users, rights holders tend to attack the problem by suing “intermediaries” which enable users to easily search and access songs and videos online (i.e. search engines such as Google and Yahoo and online content providers such as YouTube).
Intermediaries argue that they are not involved in the direct copying of anyone’s works. They believe that their responsibility should be focused on ensuring that their networks function smoothly and efficiently, rather than policing for unauthorized content. Rights holders, on the other hand, argue that intermediaries have a responsibility to monitor and control the content passing through their network.
The question of intermediary liability has been litigated in court cases around the world, most notably in the United States with the Napster1 and Grokster2 cases. The trend is that intermediaries face copyright liability if they have knowledge of infringement and the ability to control infringing content. These requirements of “knowledge” and “control” are meant to balance the interests of the intermediary’s ability to efficiently run their business and the interests of rights holders to curb piracy and remain profitable.
Litigation in China - IFPI vs Yahoo.cn
The United States has the world’s largest population of internet users, estimated at over 200 million3. China has the world’s second largest population of internet users, estimated at over 130 million4, and is soon expected to overtake the United States. Thus, online copyright issues are becoming increasingly important in China, and Chinese courts are a new battleground for rights holders and internet intermediaries.
In December 2007, the Beijing Higher People’s Court made a key ruling about intermediary copyright liability in China. In this case, the International Federation of Phonographic Industries (IFPI), on behalf of 11 record companies, sued Yahoo.cn for contributory copyright infringement because Yahoo.cn’s site allowed users to find and download unauthorized copies of popular songs. IFPI notified Yahoo.cn of the unauthorized songs they were concerned with by providing sample links to each song and requesting Yahoo.cn to remove all copies of the unauthorized songs from their network. Yahoo.cn removed the songs specified by IFPI but not all unauthorized songs as requested. IFPI won the case in the first instance at the Beijing No. 2 Intermediate People’s Court, and again on appeal at the Beijing Higher People’s Court.
This ruling is based partly on the recent Chinese Regulation on Protection of the Right to Network Dissemination of Information (2006) stipulating that internet service providers shall be liable for infringement if they “know” or “ought to know” of an infringing work. The ruling places the burden on the intermediary to take extra efforts to monitor their network once they have been notified of infringements.
This case sends a clear message that rights holders have legal recourse in China if they notify intermediaries of infringing content. Additionally, the judgment indicates that intermediaries have a duty to remove unauthorized content they know to exist on their networks. However, the degree of responsibility and diligence that the intermediary must exercise is still a contested area. For example, if a website is given notice regarding one song, do they have an obligation to police all future infringements of the same song and/or regulate all instances of similar content? What is technologically and economically feasible? What is the scope of the intermediary’s responsibility?
The Search Goes On
These questions will likely be resolved through a combination of legal, technological, and market means. Already, new copyright lawsuits have been filed in China against Chinese search engines Baidu and Sohu, and content provider Tudou.com. As these cases indicate, rights holders will continue to pressure intermediaries to expand the scope of their responsibilities. While the Yahoo.cn case sheds some light on intermediary liability, Chinese courts, operating in a civil law jurisdiction, will still decide each case based on its unique facts including the notice given, knowledge and intent of the intermediary, and the intermediary’s unique site design and architecture, which determine how easily they can monitor and control content.
Judicial decisions will be affected by parallel developments in technology. New technology continues to improve the ability to identify, monitor, and control digital content by rights holders, intermediaries, as well as users. As new technologies are introduced, courts and legislatures will need to balance the burden on rights holders for monitoring infringements with the burden on intermediaries for controlling their networks as well as the burden on the public’s access to information. Finally, artists and other copyright owners will continue to develop new ways to take advantage of the ease of digital copying and distribution to promote their works5 rather than focus on controlling distribution through copyright enforcement.
Endnotes
1 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004. (9th Cir. 2001).
2 MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
3 Nielsen Netratings:
http://www.nielsen-netratings.com/
4 Chinese Internet Network Information Center: http://www.cnnic.cn/download/2007/ 20thCNNICreport-en.pdf
5 The technobraga music movement in Brazil takes advantage of piracy and new technology to promote musicians and concerts. http://www.a2kbrasil.org.br/ENG/In- Brazil-performers-embrace-music
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