China, Copyright

China Copyright Takedowns

What happens when you want to take down an audio recording from the Chinese Internet that infringes on a copyright?

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US china flagsChina has a good system for securing removal of copyrighted subject matter posted online without the copyright owner’s approval. My firm’s China lawyers have helped gaming companies, publishing companies, motion picture companies, and other copyright owners get their material removed from the Chinese Internet. We generally achieve good results when the copyright owner is well prepared.

This post will focus on taking down recordings from the Chinese Internet that infringe on a copyright.

China’s copyright takedown regulations protect the right of “communication through an information network.” This is the right to make sound and audiovisual recordings publicly available by wire or wirelessly. Under Chinese law, making recordings available to the public through an information network requires permission of the right owner, who is in turn entitled to remuneration when the right is exercised.

Chinese law seems to provide for two kinds of network service providers: Internet access providers (IAPs) and Internet presence providers (IPPs). IAPs are entities that provide access to the Internet, such as China Telecom, China Mobile, and China Netcom. IPPs provide network space for users to upload information and 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.

China’s copyright takedown system applies as follows to network service providers and service recipients. The right owner may give written notice to the network service seeking removal of a recording if the right owner believes the information network is infringing the right by allowing the recording to be stored, searched, or linked without approval. This 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.

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 either replace the recording or reinstate the link and then send the explanatory statement to the right holder. On receiving such an explanatory statement, the right owner cannot issue a fresh complaint and must at that point decide whether to simply walk away or initiate an infringement proceeding against the alleged copyright infringer(s).

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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 distinguish between service providers that provide searching or linking services and those that provide storage space.

It is important to realize that the right owner can be held liable in damages if its notice leads to a service provider wrongly removing or wrongly disconnecting, and this wrongful removal or disconnect causes the service recipient to incur a loss.  

Dan Harris is a founding member of Harris Moure, an international law firm with lawyers in Seattle, Chicago, Beijing, and Qingdao. He is also a co-editor of the China Law Blog. You can reach him by email at firm@harrismoure.com.

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