25 November, 2015
Photo by gaelx, http://bit.ly/1YoM0x1
This is the second in a series of posts about China’s system for the takedown of copyright subject matter stored or posted online without the copyright owner’s approval. In our first post, Copyright Takedowns in China, we provided a general summary of the regulations that establish the takedown procedures. These regulations enable enforcement of the “right of communication through an information network” as it applies to sound recordings and audiovisual recordings. As we have seen, the regulations apply to “network service providers” (网络服务提供者）and “service recipients” (服务对象). They draw a distinction between providers of searching or linking services and those that provide storage space.
The distinction between searching and linking providers and storage space providers is not always clear. What is clear is that the liabilities of each are different.
Souhu and Sina are examples of Chinese linking services. A search or link provider is not liable for compensation if it disconnects the link after receiving a takedown notice. The provider remains liable for contributory infringement if it knows, or had reasonable grounds to know, that the linking of the recording infringed the right of communication.
Youku, and Chinese video websites such as iqiyi.com and ku6.com, are storage space providers. But they also provide searching and linking services. For example, some videos are searchable on Youku but there is a link to letv.com where these videos are stored.
A service provider that provides storage space to a service recipient that stores infringing recordings is not liable for compensation if it:
- makes no modification to the recordings
- doesn’t know and has no reasonable grounds to know there is an infringement
- gains no direct financial benefit from the recordings; and
- removes the recordings on receiving notice from a rights owner according to the procedure outlined in the regulations.
One explanation for the distinction between the liability of storage space providers and the liability of search or link providers is that the copyright subject matter is not sitting on the servers of the search or link providers. Additionally, storage space providers have more control over the content they hold. In practice, the distinction can be mitigated because a Chinese court is entitled to take into account any rankings or recommendations made by the provider.
In our next post we’ll look at how the takedown procedures apply to Chinese cloud service providers.
Written by Mathew Alderson and Grace Yang, Harris Moure
