China has a pretty good system for takedowns of copyright subject matter stored or posted online without the approval of the copyright owner. Our international entertainment lawyers 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.
Distinctions Between Searching and Linking Providers
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.
The distinction between searching and linking providers and storage space providers is not always clear. What is clear is that the liabilities of each are different.
Souhu and Sina are examples of Chinese linking services. A search or link provider is not liable for compensation if it disconnects the link after receiving a takedown notice. The provider remains liable for contributory infringement if it knows, or had reasonable grounds to know, that the linking of the recording infringed the right of communication.
Youku, and Chinese video websites such as iqiyi.com and ku6.com, are storage space providers. But they also provide searching and linking services. For example, some videos are searchable on Youku but there is a link to letv.com where these videos are stored.
A service provider that provides storage space to a service recipient that stores infringing recordings is not liable for compensation if it:
- makes no modification to the recordings
- doesn’t know and has no reasonable grounds to know there is an infringement
- gains no direct financial benefit from the recordings; and
- removes the recordings on receiving notice from a rights owner according to the procedure outlined in the regulations.
One explanation for the distinction between the liability of storage space providers and the liability of search or link providers is that the copyright subject matter is not sitting on the servers of the search or link providers. Additionally, storage space providers have more control over the content they hold. In practice, the distinction can be mitigated because a Chinese court is entitled to take into account any rankings or recommendations made by the provider.
The distinction between searching and linking providers and storage space providers is not always clear. What is clear is that the liabilities of each are different.
Souhu and Sina are examples of Chinese linking services. A search or link provider is not liable for compensation if it disconnects the link after receiving a takedown notice. The provider remains liable for contributory infringement if it knows, or had reasonable grounds to know, that the linking of the recording infringed the right of communication.
Youku, and Chinese video websites such as iqiyi.com and ku6.com, are storage space providers. But they also provide searching and linking services. For example, some videos are searchable on Youku but there is a link to letv.com where these videos are stored.
A service provider that provides storage space to a service recipient that stores infringing recordings is not liable for compensation if it:
- makes no modification to the recordings
- doesn’t know and has no reasonable grounds to know there is an infringement
- gains no direct financial benefit from the recordings; and
- removes the recordings on receiving notice from a rights owner according to the procedure outlined in the regulations.
One explanation for the distinction between the liability of storage space providers and the liability of search or link providers is that the copyright subject matter is not sitting on the servers of the search or link providers. Additionally, storage space providers have more control over the content they hold. In practice, the distinction can be mitigated because a Chinese court is entitled to take into account any rankings or recommendations made by the provider.
In our next post we’ll look at how the takedown procedures apply to Chinese cloud service providers.