Interpretation by the Supreme People's Court of Several Issues Relating to Adjudication of and Application of Law to Cases of Copyright Disputes on Computer Network

With a view to duly adjudicating cases of copyright disputes on computer network, an interpretation of several issues relating to the application to this category of cases is made as follows in accordance with the provisions of the General Principles of the Civil Law, the Copyright Law and the Civil Procedure Law.

Article 1 Cases of copyright disputes on computer network are under the jurisdiction of the people's court of the place in which an infringing act is committed or in which the defendant has his or its domicile. The places in which an infringing act is committed includes the place where equipment used to carry out accused infringing acts, such as network servers, computer terminals, etc. Where the place in which an infringing act is committed and in which the defendant has his or its domicile is hard to determine, the place of the equipment such as a computer terminal in which the plaintiff has found the contents of infringement may be deemed the place where the infringing act is committed.

Article 2 Works under the protection of the Copyright Law shall include the digitized form of all the categories of works specified in Article 3 of the Copyright Law. Other achievements of intellectual creation shall be protected by the people's court which cannot be placed in the works categorized in Article 3 of the Copyright Law, but are original in the field of literature, art and science, and reproducible in some tangible form.

The provisions of Article 10 of the Copyright Law for the various rights of the copyright all apply to the copyright in the digitized works. Communication of works to the public through network is a way to use works under the Copyright Law, and the copyright owner shall enjoy the rights to use or allow others to use the work in a variety of ways and to be remunerated therefore.

Article 3 Except that the copyright owner otherwise states or an Internet service provider (ISP) states on his or its behalf that a work, published in the press or on the Internet, should not be reprinted and adapted, reprinting and adaptation of a work, with the remuneration paid according to the relevant provisions and source thereof indicated, do not constitute an infringement. However, such reprinting and adaptation going beyond the scope of reprinting of works in press shall be established as an infringement.

Article 4 Where an internet service provider participates in any act of another person to infringe copyright through network, or aids and abets, on the Internet, others to carry out any act of copyright infringement, the people's court shall investigate it and other actors or any other person having directly carried out the infringement, and impose joint liability thereon.

Article 5 Where any Internet service provider engaged in provision of information contents has obtained clear knowledge that an Internet user is, carrying out on the Internet, an act of infringement on another person's copyright, or being warned by the copyright owner based on solid evidence, failure to take measures for removal and elimination of the infringing contents in order to eradicate the consequence of the infringement, the people's court shall investigate it and the network user, and impose joint liability thereon according to the provision of Article 130 of the General Principles of the Civil law.

Article 6 Where any Internet service provider engaged in provision of information contents refuses, without justification, to provide the registration material of the infringer on its network as requested for by the copyright owner in an effort to investigate and impose liability for the infringement, ...the people's court shall investigate it, and impose corresponding liability thereon according to the provision of Article 106 of the General Principles of the Civil law.

Article 7 Where any copyright owner who, upon finding out the infringing information warns the Internet service provider or requests for the registration material of the infringer on the network, is unable to produce proofs of his identification, ownership of copyright and the infringement, such warning or request shall be deemed not to have been made.

Where, after the copyright owner produces said proofs, the Internet service provider does not take measures, the copyright owner, when instituting legal proceedings, apply to the people's court for its firstly deciding to stop the infringement, remove impediment, eliminate ill effect, and the people's court shall give the permission.

Article 8 Where any Internet service provider takes measures, such as removal and elimination of the infringing information contents, upon the warning by the copyright owner based on solid evidence, and where the accused infringer requests the Internet service provider to be liable for breach of contract, the people's court shall not support such request.

Where the copyright owner's accusation of infringement is not based on facts, and the accused infringer has suffered damages as caused by the measures taken by the Internet service provider, and claims for compensation for the damages, the people's court shall decide to order the person giving the warning to bear the liability therefore.

Article 9 when hearing cases of copyright dispute on the Internet, the people's court shall respectively apply the laws as the following according to the different circumstances of the cases.

(1) The provisions of Article 45 (1), (2), (3) and (4) of the Copyright Law shall apply to the determination of infringement on the personal rights, such as the right of publication;

(2) The provisions of Article 45 (5) of the Copyright Law shall apply to the determination of infringement on the right of use in the communication of a work to the public;

(3) The provisions of Article 45 (6) of the Copyright Law shall apply to the determination of infringement on the right of remuneration;

(4) The provisions of Article 45 (8) of the Copyright Law shall apply to the determination of infringement on the neighboring rights of phonogram producers, performers, and broadcasting and television organizations, or to the determination that the acts as caused by deliberate deletion or alteration of the copyright management information constitute infringement; and

(5) The provisions of Article 46 (1) of the Copyright Law shall apply to the determination of infringement by plagiarizing and copying another person's work.

Article 10 When determining the amount of damages arising from an infringement, the people's court may, by the request of the infringee, calculate the amount of damages according to the direct economic damages to and losses of the expected interests thereto; it may also calculate the damages on the bases of the income the infringer makes from the infringing act. Where the infringer cannot give proof of its costs or the necessary expenses, the income made thereby from the infringing act shall be the interests sought thereby.

Where the infringee's damages cannot be determined, the people's court may, by the request of the infringee, determine the amount of damages to be RMB 500 Yuan to no more that RMB 300,000 yuan, but not exceeding RMB 500,000 yuan at most.