China’s Cyberspace Administration proposes amendments to the Cybersecurity Law
Issue date: September 12 2022
The Cyberspace Administration of China, together with other relevant departments, recently issued proposed amendments to China’s Cybersecurity Law, seeking feedback by 29 September 2022. The introduction of the Cybersecurity Law in 2017, with the aim of comprehensively regulating cybersecurity issues, was an important milestone in the construction of the rule of law in cyberspace in China.
The proposed amendments aim generally to improve cybersecurity in China. In particular, they seek to make the law more consistent with several other relevant laws that have been introduced since 2017: the Administrative Penalties Law, the Data Security Law, and the Personal Information Protection Law. They significantly increase fines for violations of the Cybersecurity Law.
Fines for violations of network operation security protection and network information security obligations, have been increased from a maximum of 1 million CNY (approx. US$150,000,00) to 50 million CNY (approx. US$ 7,500.00) or 5% of the previous year’s revenue for companies; and from a maximum of 100,000 CNY (approx. US$14.000) to 1 million CNY (approx. US$ 150,000) for individuals.
Source: Cyberspace Administration of China
Link: http://www.cac.gov.cn/2022-09/14/c_1664781649609823.htm
‘Regulations on the Administration of Internet Pop-up Push Services’ issued by the Cyberspace Administration of China, the Ministry of Industry and Information Technology, and the State Administration for Market Regulation
Issue Date: September 9 2022
Effective Date: September 30 2022
In order to standardize the use of Internet pop-up push notifications and promote the healthy and orderly development of the online information industry, the Cyberspace Administration of China, the Ministry of Industry and Information Technology, and the State Administration for Market Regulation have jointly issued Regulations on the Administration of Internet Pop-up Push Services (the Regulation).
The Regulation was issued on 9 September 2022 and came into force on 30 September 2022. It focuses on a number of key areas such as news and advertisements, and aims to solve a number of outstanding issues relating to illegal news pushes, advertisements with inconspicuous closing buttons, excessive push frequency, and excessively enticing content.
The Regulation introduces provisions to improve data security, personal information protection, and the protection of minors. Internet pop-up push service providers will be responsible for content management and are subject to certain specific obligations, including (1) to obtain an internet news information service license; (2) to set a reasonable proportion of push content; (3) to improve the review process of push content; and (4) to prevent malicious web traffic redirection.
These regulations are likely to be welcomed by Chinese Internet users as they also address quality-of-life problems in connection with apps usage, such as the spamming of mobile app notifications. Service providers must clearly notify users of the frequency of notifications and indicate how to unsubscribe; and advertisements must be clearly marked so that they won’t be mistaken as news.
Source: Cyberspace Administration of China
Link: http://www.cac.gov.cn/2022-09/08/c_1664260384702890.htm
Unauthorised dissemination of audio version of the novel ‘The Three-Body Problem’ on the Lizhi Platform held to Infringe Copyright – damages award of 5 Million Yuan (approx. US$700,000)
Date: September 15 2022
Shenzhen Tencent Computer Systems Co., Ltd. (Tencent) signed an exclusive cooperation agreement with Cixin Liu, the author of the novel The Three-Body Problem, and obtained an exclusive license to record The Three-Body Problem as an audio work. Without the authority of Tencent, Guangzhou Lizhi Network Technology Co., Ltd. (Lizhi Company) uploaded a large amount of The Three-Body Problem audio content to its Lychee Platform. Despite repeated letters from Tencent informing Lizhi Company that it was infringing copyright, and requesting that the works be taken down, a large number of infringing audios remained on the platform. Tencent then filed a copyright infringement action with the Shanghai Pudong New Area People’s Court, requesting compensation of 5 million yuan (approx. US$700,000). It succeeded at first instance and Lizhi Company appealed to the Shanghai Intellectual Property Court.
The main issue on appeal was whether Tencent owned the relevant copyright in the works involved. Lizhi Company argued that Tencent had not acquired the Right of Dissemination via Information Network of The Three-Body Problem. The Shanghai Intellectual Property Court held that Tencent had the legal right to produce, distribute, and disseminate the audio work of The Three-Body Problem in any field (including but not limited to the Internet). In addition, the works involved in the case were well-known, and Lizhi Company should have realized that the rights owner would not allow others to disseminate the work on other platforms without payment, and that there was a high risk of copyright infringement. Besides, as the users who were uploading the material to the Lizhi platform included some popular hosts with many fans, Lizhi Company should have undertaken a higher duty of care; it knew, or should have known, that these users would be disseminating unlicensed infringing audio and failed to take action to stop them. This constituted contributory infringement; in the circumstances, Lizhi could not rely on the protection of the safe harbor rules.
In the end, the second-instance court rejected all Lizhi Company’s appeals, upheld the first-instance judgment, and granted the Plaintiff’s request for 5 million yuan compensation.
Source: China Intellectual Property News
Link: https://mp.weixin.qq.com/s/rH6CsuswitSylGqb-3LZDg
Beijing Intellectual Property Court Holds Christian Louboutin red-soled shoes and the name ‘red sole shoe’ capable of protection under Anti-Unfair Competition Law
Date: September 9 2022
The first Plaintiff in this case, Christian Louboutin Simple Co., Ltd. (Christian Company), has been designing, producing, and selling women’s high-heeled shoes with a red sole decoration since 1992. The second Plaintiff, Lanbuting Shanghai Trading Co., Ltd. (Lanbuting Company), is its Chinese distributor. The first Defendant, Guangdong Wanlima Industrial Co., Ltd. (Wanlima Company), a medium sized Chinese shoe manufacturer, produced and sold a variety of shoes with red soles, very similar to Christian Company’s red-soled shoes. The shoes were sold online and at the business premises of the second Defendant, Beijing Yixi New World Department Store Co., Ltd. (New World Company), which also used ‘red-soled shoes’ as its trade name. The Plaintiffs considered that the acts of the two defendants violated the Anti-Unfair Competition Law of the People’s Republic of China (the AUCL) and filed a lawsuit with the Beijing Intellectual Property Court.
The Court held that both Christian Company’s red-sole shoe decoration and the phrase ‘red-sole shoe’ have a high market reputation and a stable relationship with the relevant public. The distinctive feature of the red-soled shoes serves to distinguish the source of the product and, therefore, constitutes a decoration with a ‘certain influence’ for the purposes of Article six of the AUCL. That article prohibits the unauthorized use of labels, packing or decorations that have a certain influence.
Wanlima Company, used the name ‘red-sole shoes’ and sold the red-soled shoes without authorization, thereby misleading customers to believe that it, or its products had some specific connection with Christian Company. This constituted unfair competition. As there was insufficient evidence to show that the second Plaintiff, Lanbuting Company, had established a separate relationship with the red-sole name or product, it did not have a direct interest in the case.
As a result, the Beijing Intellectual Property Court finally ruled to dismiss Lanbuting Company’s case and ruled that Wanlima Company should stop the infringement and compensate Christian Company for economic loss in the sum of RMB 5 million (approx. US$ 700,000) and reasonable expenses of RMB 445,000 (approx. US$ 70,000). The second Defendant, New World Company, was ordered to pay costs in the sum of RMB 5,000 (approx. US$ 700)
Source: Beijing Intellectual Property Court
Link: https://mp.weixin.qq.com/s/_5htyK7NwIRjg_afvTJDBg
