Explanations by the Supreme People’s Court Concerning Several Problems of
Law Application in Trials concerning Internet Copyright Litigation

To try correctly litigation concerning Internet copyright, we hereby issue, in accordance with the General Rules of Civil Law, Copyright Law and Civil Litigation Laws, the following explanations concerning several legal application problems in this kind of litigation:
1. Litigation concerning Internet copyright infringement is under the jurisdiction of the People’s Courts in the areas (1) where the infringing conduct took place or (2) where the dwelling of the defendant is located. The places of infringement include places where the equipment undertaking the conduct, such as Internet servers, computer terminals and etc., is found. If the place of infringement and the dwelling of the defendant are uncertain, the location of the computer terminal equipment, where the infringing contents have been found by the plaintiff, could be deemed as place of infringement.

2. The electronic forms of those works provided in Article 3 of the Copyright Law are under the protection of the Copyright Law. Other intelligent inventions possessing originalities in respect of literature, art and science and being able to be reproduced in certain visible forms, but being not suitable to be included in those works in Article 3 of the Copyright Law under the cyber circumstances, shall be protected by the People’s Courts.

All the regulations concerning copyrights stipulated in Article 10 of the Copyright Law are applicable to works in electronic forms. To make a work public via Internet appertains to the means of using a work stated in the Copyright Law and the copyright owner thus has the right to use or license others to use this work by Internet and obtain profits therefrom.

3.The internet service providers (ISPs) reprint or compile the works that have been publicized in newspapers or Internet with indicating the sources and paying the copyright owner accordingly shall not constitute an infringement, except that this is publicly forbidden by the copyright owner or the ISP entrusted by the copyright owner. However, if the reprint or compilation by the ISP transgresses the limit of the work reprinted by the newspapers, it shall be deemed as an infringement.

4. The ISPs who are involved in others’ copyright infringing conduct through Internet, or instigate or aide others through Internet to implement copyright infringing conducts, shall be hold responsible together with other infringers in accordance with Article 130 of the General Rules of Civil Law.

5. Being fully aware of the Internet user’s copyright infringing conducts or after being warned by the copyright owner with convincing evidences, the Internet Content Providers (ICPs) still do not take any action to remove the infringing content and eliminate the adverse impact, the ICPs shall be hold responsible with the Internet user for the infringement by the People’s Court in accordance with Article 130 of the General Rules of Civil Law.

6. When the copyright owner demands the ICP to provide the registration documents of the infringing party in an attempt to bring it into action, but the ICP refused to do so without justified reasons, the ICP shall be hold responsible for infringement by People’s Court in accordance with Article 106 of the General Rules of Civil Law.

7. The copyright owner, after having discovered the infringing information, warns the ISP or requests the infringer’s web registration documents without being able to show his Identification Certificate, Copyright Proprietorship Certificate and Infringement Situation Certificate, the warning and request shall be regarded as invalid.

When the copyright owner has showed the above-mentioned certificates and the ISP still does not take any necessary measures, the copyright owners may apply with the People’s Court for the cease of infringement, the removal of hindrance and the elimination of effect, and the People’s Court shall permit accordingly.

8. When the ISP, after receiving the warning from the copyright owner based on substantial evidences, takes measures such as removing the alleged infringing content and the sued infringer demands the ISP to take the responsibility of breach contract, the People’s Court shall not support the demand.

If the infringement allegations forwarded by the copyright owner are untrue and the alleged infringer has been inflicted on damages because of the actions taken by the ISP, the People’s Court shall rule that the person who issued warning assume the responsibility of compensation.

9. People’s Courts dealing with cyber copyright infringement litigation cases shall, according to the respective circumstances of each case, apply the following laws:

(1). For cases identified to be the infringement of the personal right like the publishing right, the No. 1,2,3,4 items of Article 45 of Copyright Law shall be used;

(2). For cases identified to be the infringement of the right of use by works which are made public, the No. 5 item of Article 45 of Copyright Law shall be used;

(3) For cases identified to be the infringement of obtaining profits, the No. 6 item of Article 45 of Copyright Law shall be used;

(4) for infringement of neiboring rights of the producers of audio-vedio products, performers, broadcasting and television organizations, or for conducts like removing or altering copyright managerial information resulting in infringement consequence which constitute infringement, the 8th item of Article 46 of Copyright Law;

(5). For cases identified to be the plagiarize or imitation of other’s works, the No. 1 item of Article 46 of Copyright Law shall be used.

10. In deciding the amount of the infringement damages, the People’s Court, after consulting the copyright owner, may base the computation on the economic damages caused directly by the infringement and the estimated profits generated from the loss. Or it may get the damage amount by computing the profits obtained by the infringer. The revenues obtained by the infringer’s infringing conducts, without being able to be proved to be product costs or indispensable costs, shall be deemed as obtained profits.

If the amount of damages for the copyright owner can not be determined, the People’s Court, after consulting the copyright owner, may fix the amount within the range from RMB 500 yuan to RMB 300,000 yuan, not exceeding RMB 500,000 yuan at most.

(by Copyrights 1998-2003 Liu Lee & Associates)