China copyright takedownsThis is the fifth in our series about online copyright takedowns in China. In Copyright Takedowns in China, we provided a general summary of the regulations that establish the takedown procedures. These regulations enable enforcement of the “right of communication through an information network” as it applies to sound recordings and audiovisual recordings. In Copyright Takedowns in China Part II: Searching, Linking or Storing? we looked at how providers of storage space face more liabilities than those merely providing searching or linking services. In Copyright Takedowns in China Part III — Audiovisual and Sound Recordings in the Cloud, we discussed how China’s takedown regulations apply to cloud service providers. In Copyright Takedowns in China, Part IV: Whatever you do, Register your Copyrights First, we made clear that “if you ever expect to have infringing content taken down the single most important thing you should do is register your copyright in China in advance.”

In this post we discuss your options after you have succeeded in taking down copyright material.

One of the problems with China’s notice and takedown system is that, after the material has been taken down, a copyright owner’s further recourse against an infringer is uncertain. This is because it’s hard to identify an infringer who has allowed material to be taken down in response to a notice. Infringers are only required to identify themselves to the copyright owner if the infringers object to the takedown. Without the identity of the perpetrator it’s hard, though not impossible, to initiate copyright infringement proceedings in China. The infringer tends to remain anonymous.

Solutions and practices are only slowly emerging in response to this problem in China and elsewhere.

One possible solution is a “notice and trackdown” procedure. With such a procedure in place rights owners can identify infringers and hunt them down. The implementation of something like this would require a balancing of the rights of copyright owners with rights of privacy. It would require an exploration of whether there should be an expectation of anonymity in cyberspace.

Some time ago, Frederick Mostert and Martin Schwimmer provided an excellent discussion of the issues in “Notice and Trackdown,” a paper published in Intellectual Property Magazine.

The issue is one of several covered recently in “Notice and Takedown in Everyday Practice“, a report by Jennifer M. Urban and Brianna L. Schofield, both of UC-Berkeley School of Law, and Joe Karaganis, of Columbia University. Part of the “Takedown Project“, the report considers the effectiveness of the notice and takedown process since The Digital Millennium Copyright Act was passed by Congress in 1998. In their findings, the authors conclude that, “Analyzing the effectiveness of [the] procedures in responding to infringing materials on specific sites, balancing copyrights and speech rights … is severely limited by the law’s lack of requirements for publicly disclosing information on notices sent and [online service provider] responses.”

Will we see the balance tip away from online anonymity in China? It would certainly suit copyright owners but it will be hard to say where anonymity should end and accountability should begin.