The “right to disseminate works on the information network” in Chinese copyright laws derives from the provision of Article 8 of the World Intellectual Property Organization Copyright Treaty (the “WCT“) 1996 that “authors of literary and artistic works enjoy the exclusive right to authorize any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access such works from a place and at a time individually chosen by them”. In Amendment to China
Copyright enacted in 2001, the right to broadcast information networks was introduced. By implementing the
WCT in national laws, this right was also created for the legislative purpose of allowing rights holders to control, among othersdissemination of their protected works via the information network.
(1) An overview of the right to broadcast on information networks
According to China’s copyright laws, the right of dissemination on the information network generally includes the right to transmit the works through the information network and the right to obtain remuneration by allowing others to disseminate protected works through information networks.
Copyright holders, performers and producers of sound or video recordings are the legal holders of the right to broadcast on the information network. In practice, to better utilize the commercial value of works, the right to broadcast on information networks is often licensed to third parties by owners through contractual relationships.
Objects of this right include copyrighted works, performances, and sound or video recordings. “Copyrighted works” here refers to “the work” as defined by Article 3 of China Copyright 2021. According to China
Civil Code adopted in 2021 and Provisions from Supreme People’s Court on Several Issues Concerning Law Enforcement in the Trial of Civil Cases Involving Violation of the Right to Broadcast Information Networks (the “Supreme Court provisions“), network users and network service providers would be the bearers of liability if the infringement were established.
(2) Cases involving disputes over the right to broadcast on information networks
The number of cases relating to the right to broadcast on information networks has risen sharply in recent years. Take the example of the Beijing Internet Court, since its establishment in September 2018 until November 2021, 125,985 cases involving copyright infringement have been accepted, of which about 99% concern the broadcasting right of Internet networks. information.1.
The data shows that most disputes over the right to broadcast information networks occur in well-developed areas such as Beijing, Shanghai, Guangdong, Zhejiang and Jiangsu, as the rapid development of economy and technology induces more intellectual achievements and more online platforms or networks. operators such as Baidu, Tencent, Alibaba, ByteDance and ChinaTelecom. Special Internet courts have been established in Beijing, Guangzhou and Hangzhou to adjudicate Internet-related disputes, where copyright protection mechanisms are better enforced with sufficient judicial resources and extensive experience of judges. As revealed by the Guangzhou Internet Court, in 2020, the number of concluded Internet-related copyright infringement cases reached 28852, and 27399 such cases were concluded last year.2.
The right to broadcast on information networks can be protected through criminal, administrative and civil proceedings, among which recourse to civil actions is the main choice of rights holders to obtain protection. According to leaked reports from Chinese local courts, more cases are settled in settlement through courts than judgments as a means of dispute resolution3.
(3) Characteristics of acts of violation of the right to broadcast information network
Compared to traditional acts of infringement, acts of infringement of the right to broadcast on information networks always involve more advanced techniques and therefore become less visible to rights holders.
The internet has broken the borders of countries and streaming works over the internet would make them available worldwide. The influence caused by the dissemination of the infringing works may be greater than before, and therefore the loss caused by the acts of infringement would be greater.
The methods of counterfeiting have diversified. The infringement can be committed in traditional ways, such as downloading works for browsing, downloading or reading, scheduled online reading, network service providers providing links, providing P2P services, providing a search, providing storage space services, and disabling or circumventing technical measures, and in non-traditional modes like deep linking and iframe embedding4.
In recent and influential cases, infringements are often committed against online games, television shows, films, literary and musical works when these works have greater popularity in the market and computer software has become a frequently violated work.
(4) Challenges in Protecting the Broadcasting Right of Information Networks
The creation of works protected by copyright often requires large investments in human and economic resources and, therefore, license fees are sometimes very high. However, due to the ease and speed of dissemination over the Internet, infringement can be carried out easily through various devices and means, sometimes infringing works can be disseminated to the world within seconds.
The anonymity and the extent of the Internet make it difficult for the courts to identify Internet users and find out who is really responsible. Current operators of online platforms can be both content and service providers, which sometimes imposes significant hurdles on the courts to decide whether there is infringement and liability for infringement.
As noted above, there are new ways of counterfeiting on the information network that are themselves difficult to prove. The development of linking technologies and their frequent use have led the courts to consider new questions. For example, one might ask whether a deep link can constitute an infringement and, if so, what conditions must be met to establish an infringement. To solve these problems, different tests have been proposed in specific cases such as the server test, the spectator-oriented test and the new public test.
In court practice, the damages awarded to rights holders are always well below the expected amounts. The expenses of rights holders to assert their rights in and out of court are rather high compared to the low amounts of damages. In most cases, damages are decided at the discretion of judges because it is difficult for plaintiffs to prove the actual loss caused by the infringement or the actual benefits obtained by the offenders. Discretionary damages are decided by assessing the seriousness of Internet-related acts of infringement, and it is too ambiguous for judges to arrive at a fair and compelling amount of damages in these cases.
Significant changes to the Copyright in 2021 have been made to satisfy the requirements for stronger copyright protection in the digital environment, but controversies over legal issues such as how to decide between infringement and fair use have been caused by extensive use of advanced dissemination techniques. We expect that more judicial interpretations and leading judgments will be made by the Supreme Court in order to achieve a better reconciliation between the interests of rights holders and those of the public.
3. http://www.zjcourt.cn/art/2021/4/28/art_81_23632.html; http://xzzy.chinacourt.gov.cn/article/detail/2018/07/id/3385825.shtml; https://3g.163.com/dy/article/G81K4E1F0514D3UH.html?spss=adap_pc
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.