China has a pretty good system for takedowns of copyright subject matter stored or posted online without the approval of the copyright owner. Our China lawyers are have helped motion picture producers, motion picture distributors, gaming companies and other copyright owners invoke this process and the results are generally good when the copyright owner is well prepared.
This is the first in a series of posts looking at online takedowns. In this post we provide a general summary of the regulations that establish the takedown procedures for copyright subject matter.
The copyright takedown regulations protect the right of “communication through an information network.” This right is one of several comprising the copyright in audiovisual recordings and sound recordings under Chinese copyright law. References below to “recordings” include both sound recordings and audiovisual recordings.
The right of communication through an information network means the right to make recordings available, by wire or wireless means, to members of the public from places, and at times, chosen by them individually. Making recordings available to the public through an information network requires permission of the right owner. The right owner is entitled to remuneration when the right is exercised.
The regulations apply to “network service providers” (网络服务提供者）and to “service recipients” (服务对象), but neither term is defined. A service recipient can be any person or any legal entity that causes content to be posted online.
There seem to be two kinds of network service providers: Internet access providers (IAPs) and Internet presence providers (IPPs).
IAPs are entities that provide access to the Internet. Examples of Chinese IAPs include China Telecom, China Mobile and China Netcom.
IPPs provide network space for users to upload information. They also provide search engine services. IPPs often provide the disk space, high-speed Internet connection, or even the web site design, for those wanting an Internet presence. Youku, v.qq.com and www.letv.com are examples of Chinese IPPs.
This is how the copyright takedown system applies to network service providers and service recipients:
- The right owner may give written notice to the network service provider requiring the removal of a recording if the right owner believes that the information network is infringing the right by allowing the recording to be stored, searched or linked without approval. The notice must contain certain details, including preliminary proof of infringement.
- After receiving a notice, the service provider must promptly remove the recording or disconnect the link. The service provider must then forward the notice to the service recipient.
- The right owner is liable in damages if, as a result of a notice, the service provider wrongly removes or wrongly disconnects and this causes loss to the service recipient.
- If the service recipient believes the network communication right has not been infringed it may deliver an explanatory statement to the service provider and request reinstatement of the recording or the link.
- If the service provider receives such a statement it must promptly replace the recording or reinstate the link and then send the explanatory statement to the right holder.
- On receiving an explanatory statement the right owner cannot issue a fresh complaint and would, we presume, need to initiate court proceedings to take the matter further.
- A service provider that does not follow these procedures can be required to cease the infringement, issue an apology, eliminate the “bad effects” or compensate the right owner for losses. If the public interest is affected the authorities can confiscate any illegal gains and impose fines. In serious cases, computers and other equipment used to provide a network service can be confiscated.
The regulations draw a distinction between service providers that provide searching or linking services and those that provide storage space. The liabilities of each are different. We look at this distinction in our next post.