In April, the Supreme People’s Court (SPC) issued a draft judicial interpretation entitled Provisions on Several Issues of Application of Laws in the Trial of Disputes in Relation to Infringement of the Right of Communication through Information Networks. The SPC addresses rampant online infringement with rules drawn from judicial practice of the PRC courts, as well as foreign experience.
The key provisions of the draft interpretation are:
- party is a “content provider” and directly infringes copyright if it uploads copyright-protected works so the public can access them by downloading or web-browsing;
- the copyright owner is responsible for providing prima facie evidence that the defendant is responsible for providing infringing material, but a defendant will not be deemed a “content provider” if it can show that it only provides online services;
- caching of pages and thumbnail images provided by search engines falls within content providing and is subject to primary liability. However, caching will be protected as fair use if it does not affect ordinary use of the work or unreasonably harm rights holders’ interests;
- joint liability will be imposed on peer-to-peer search, storage and linking service providers if it is determined they participated in infringing activities, or incited or assisted users to infringe copyright.
Although the draft interpretation provides some much-needed clarity, how the draft rules will ultimately be adopted and how the courts interpret these rules remain to be seen.
Business Law Digest is compiled with the assistance of Baker & McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Zhang Danian (Shanghai) at Baker & McKenzie by e-mail at: [email protected]