In order to adjudicate civil disputes related to infringement of copyrights over Internet, to protect the copyrights of transmission over network, to promote the healthy development of information network industry, and to safeguard the public interests, the Supreme People's Court released the Regulations on Some Issues Concerning Applicable Law in Trial of Civil Disputes Involving Violation of Information Network Distribution Right (Draft for Comment) on April 22.
The definition on Internet copyright infringement, liability of Internet service providers (ISPs) and identification of direct economic benefits acquisition are clearly provided in the Draft for Comment.
The Draft for Comment provides that users and ISPs should bear civil liabilities if they “provide” works, performances, audio and video products owned by others through information networks without permission.
Under the Draft for Comment, the following actions should be ascertained as “ to provide”:
To enable the public to download or browse works, performances, audio and video products owned by others by uploading them to network server or other information networks;
To offer the appearance of works, performances, audio and video products, except for automatic access, automatic transmission, information storage, search, links and peer-to-peer technology and other services;
To offer search services, and make available to the public the cached version or thumbnail picture of works, performances, and audio and video products through certain technical arrangements. But fair use is allowed.
In the situation where users infringe others' right of network information distribution, if ISPs knows or should have known an unauthorized copy of copyrighted work is posted, they shall be liable for copyright infringement. The situations of “knows” and “should have known” are also provided in the Draft for Comment.
According to the Draft for Comment, that if ISPs do not proactively investigate users' infringement of others' right of network information distribution, it is generally not regarded as a fault. If they take relevant technical measures to prevent the occurrence of violations of the right to network information distribution, it can be taken as a non-fault consideration. If they take reasonable and effective technical measures but still find no infringement, it is generally not recognized as “knows” or “should have known”.
