Thoughts on Chinese
Safe Harbor Rules
——Shared by Doctor Si,
Xiao at Stanford Law School, 2014
腾讯公司副总法律顾问，互联网与社会研究院秘书长司晓博士，应美国版权法权威Paul Goldstein教授的邀请在斯坦福大学法学院版权法的课堂上和同学们做了关于中国版权法避风港规则的分享，以下为后期整理的演讲实录。
Hi, everyone, my name is Jason. Thanks for
Professor Goldstein to invite me here to talk a little bit about the safe
harbor rules in China.
Before I get started, I want to
do a quick survey here. Please raise your hand if you heard about Tencent
before. Yes, I work for Tencent, not ten dollar or ten pounds, just ten cent .
In terms of market value, we are number two in Chinese internet industry and
number 4 globally. If you look at the top 10 Internet companies of the world,
four of them, Alibaba, Tencent, Baidu, Jingdong from China, actually make up
40% of the total market value of the top 10 .The others 6 companies including
Google, Facebook, and Amazon are all US based companies.
We are an internet company that
focuses on developing better “connections”. By saying connections we mean the
connections between people, the connection between people and devices, and also
the connection between people and service. If the slogan of KFC is “we do
Chicken right” you can try to translate it into Chinese if you speak Chinese,
it is hard to do that, right. I’m so happy that it is a joke that you can reach
only if you are Chinese speaker, everytime you guys laughing at the class, we
don’t know what’s going on there, then our slogan should be “we do
communication right”.
And another quick survey, please
raise your hand if you are a WeChat user, and now please do if you use
WhatsApp. Ok, a little disappointing we have very few users here. I’ll spend
the next 30 minutes to do a promotion here, because I think we are much much
better than WhatsApp. Ok, I am just kidding, don’t worry, that’s not what
professor Goldstein ask me to do.
Let’s go back to the topic today,
I’ll spend the next ten minutes to talk a little bit about the safe harbor rule
in China. You know, this topic is so complicated that I am not sure I can make
it in ten minutes even in Chinese, I’ll try my best.
Just like DMCA highlights protection
for internet service providers against liability for copyright infringement
under certain conditions, China did exactly the same thing by issuing the
Regulations for the Protection of the “Right of Communication Through the
Information Network ”(“RPRCIN”) in 2006. The Regulation was amended again in
2013, nothing changed but the amount of the statutory damages goes up. Before
the legislation came out, the legislator chose three of the top law schools in
China to provide them with an academic proposed draft of the final regulation.
As a second year graduate student at Zhongnan University of Economics and Law,
I was lucky to participate as an assistant researcher in the research group
that delivered such draft to the legislator.
Thanks to Prof. Goldstein we
already have a very good knowledge of the US safe harbor rules so I don’t need
to talk too much about that. The Chinese Regulation provides a safe harbor for
ISPs with respect to any monetary liability related to potential violations of
copyrights for posted or linked materials. Conditions to apply safe harbor
rules in China is similar to DMCA regarding each of the 4 types of ISP. I can
do a comparison of these four articles, but it will be very time consuming.
Let’s take the safe harbor for
information storage for example, the safe harbor will applies if ISP meets the
requirements below:
1. has clearly
indicated that it is only providing memory space (such as the information
storage ISP in US,) for the content and makes publicly available its name,
contact person, and web address;
2. has not
altered the content (US Copyright Act 512a: ISP does not select the material
during the transmission)
3. does not
know, and has no justifiable reason to know, that the posted content infringes
the rights of another (US Copyright Act 512c: ISP does not have actual
knowledge, or in the absence of actual knowledge ISP is not aware of facts or
circumstances of the infringing acts);
4. does not obtain
any economic benefit from the posting of the infringing content; and (US
Copyright Act 512c: does not receive a financial benefit directly attributable
to the infringing activity)
5. promptly
removes the infringing content upon receiving a notice from the content owner,
in accordance with the provisions Regulations(US Copyright Act 512c: upon
knowledge or awareness ISP acts expeditiously to remove or disable access).
Notably, Article 23 of the
Regulations echoes the notion that any party having actual or constructive
knowledge that any linked content infringes the rights of another will not
enjoy the Safe Harbor and will be liable for any compensatory damages.
While the US rules talked about
generally no liability for taking down if the ISP acted in good faith, and the
requirement for counter notification, the Chinese law share similar notion by
saying that whoever sends the wrong notice shall be liable for the damages
caused by the false notice, and the ISP is immune from contractual liability of
deleting the information of the users.
It is also interesting that
Article 36 of Tort Liability Law (issued in 2009) in China provides new
provision on third party liability of ISP. Article 36 stated that “Those who
think their right has been infringed can send notice to ISP to take down the
content or remove the links, or block certain access to the link or content”.
If the ISP does not take it down immediately, then will be jointly liable with
the infringer for the damages caused after the notice. If the ISP takes down
alleged infringing links, then it will be shielded from liability. This
sort of notice and take down procedure stated in the Chinese Tort Law has
actually extend the safe harbor rules from copyright to all civil rights,
including trademark, patent and even the right of publicity(moral rights).
Now you can see the Chinese rules
basically repeated the US mechanism. There are benefits of being a follower.
But there are also problems. Since China is a civil law country, tort liability
generally can only be established with a finding of fault (except for some
special highly risk infringement such as the infringement caused by civil
aviation and civil nuclear infrastructure), it means that ISP is only liable
when it is at fault, which I think is not the case in US law. US Copyright
infringement is not fault based as far as I know.
Traditionally before the Chinese
legal system imported safe harbor, if you want to sue ISP for indirect
infringement, you will actually sue the ISP and the user together for joint
liability, but I in the US it is all about contributory infringement and
vicarious liability when you want to hold someone liable for other’s behavior.
So we actually imported a system based on the theory of indirect infringement
while we do not have a theory of indirect infringement in our traditional civil
law system.
For the reason stated above, the
safe harbor rules in China is really controversial , and people are arguing
whether it is really a safe harbor or something could still give rise to ISP’s
liability. Which I think it’s quite clear, as the DMCA house report said, safe
harbor is a procedure designed to protect the ISP. In China there is a clear
trend that right of notice and takedown procedure is seriously abused.
Companies like Baidu, and E-commerce platform Alibaba got tons of false notice
about the infringement of reputation and trademark.
In my PHD dissertation, I have an
independent chapter to describe this issue, pointing out the abuse of notice
and takedown procedure. The dissertation is about the Application of Indirect
Infringement Rules in ISP’s IPR Infringement.
I was in PLI conference for
liability for intermediary business last week, and learned that in US ISPs are
also secondarily liable for some of the trademark infringement; courts borrow
principles of indirect trademark infringement from tort law.
However in China, the legal
system is missing certain pieces. There is only one article in our tort law but
amazingly it wishes to cover all civil rights, so it is hard to implement.
Baidu get thousands of notice which alleged reputation infringement in a month.
Alibaba on average has more than ten thousands items alleged to infringe
certain patent rights. You know, It could be easy to recognize a copyright
infringement if the author made it clear he never authorize anyone to
distribute his work on the internet, or pornography, you know, is easy to find
out, but it is definitely not the case when you need to decide whether
someone’s reputation or patent right is infringed.
Counter notice in Copyright
seldom happen in China, but it is not the case in trademark , because larger
sum of money is involved when it comes to trademark issues for the business. In
terms of trademark, particularly in e-commerce area, e-store owners have the
incentive to send false notice to beat their competitors, which apparently
leads to abuse of the notice takedown rule. Even the Trademark owner may have
the incentive to send false notice to e-store owners, although they know for
sure the goods they complaining are made by them but not counterfeits. They do
that generally because they want to maintain the price of their goods, or to
maintain their price policy within certain areas, it is very obvious that they
don’t have the right to do that.
Despite the complicated situation
we are also making progress. The Supreme Court in China issues judicial
interpretation, which is binding as law. Recently we have the judicial
interpretation focusing on how court shall deal with cases that involve civil rights
infringement on internet. The judicial interpretation gives more detailed
information such as what elements an effective notice shall include, and how
the court will determine whether an ISP has knowledge of an ongoing infringing
activity on its platform. Beijing Higher court also has issued a district court
guideline on secondary liability for ISP in trademark infringement cases,
though it is not binding. In the future we will have the same thing for patent,
which I think will balance the IP protection and the development of the
industry.
If you have any further
questions, please send me an email, and you are welcome to find me on WeChat.
That’s all, thanks.
