Copyright Takedowns in China

1. China Copyright Takedowns

China has a pretty good system for takedowns of copyright subject matter stored or posted online without the approval of the copyright owner. Our international entertainment lawyers have helped motion picture producers, motion picture distributors, gaming companies and other copyright owners invoke this process and the results are generally good when the copyright owner is well prepared.

China’s copyright takedown regulations protect the right of “communication through an information network.” This right is one of several comprising the copyright in audiovisual recordings and sound recordings under Chinese copyright law. References below to “recordings” include both sound recordings and audiovisual recordings.

The right of communication through an information network means the right to make recordings available, by wire or wireless means, to members of the public from places, and at times, chosen by them individually. Making recordings available to the public through an information network requires permission of the right owner. The right owner is entitled to remuneration when the right is exercised.

The regulations apply to “network service providers” (网络服务提供者)and to “service recipients” (服务对象), but neither term is defined. A service recipient can be any person or any legal entity that causes content to be posted online.

There seem to be two kinds of network service providers: Internet access providers (IAPs) and Internet presence providers (IPPs).

IAPs are entities that provide access to the Internet. Examples of Chinese IAPs include China Telecom, China Mobile and China Netcom.

IPPs provide network space for users to upload information. They also provide search engine services. IPPs often provide the disk space, high-speed Internet connection, or even the web site design, for those wanting an Internet presence. Youku, v.qq.com and www.letv.com are examples of Chinese IPPs.

This is how the copyright takedown system applies to network service providers and service recipients:

  • The right owner may give written notice to the network service provider requiring the removal of a recording if the right owner believes that the information network is infringing the right by allowing the recording to be stored, searched or linked without approval. The notice must contain certain details, including preliminary proof of infringement.
  • After receiving a notice, the service provider must promptly remove the recording or disconnect the link. The service provider must then forward the notice to the service recipient.
  • The right owner is liable in damages if, as a result of a notice, the service provider wrongly removes or wrongly disconnects and this causes loss to the service recipient.
  • If the service recipient believes the network communication right has not been infringed it may deliver an explanatory statement to the service provider and request reinstatement of the recording or the link.
  • If the service provider receives such a statement it must promptly replace the recording or reinstate the link and then send the explanatory statement to the right holder.
  • On receiving an explanatory statement the right owner cannot issue a fresh complaint and would, we presume, need to initiate court proceedings to take the matter further.
  • A service provider that does not follow these procedures can be required to cease the infringement, issue an apology, eliminate the “bad effects” or compensate the right owner for losses. If the public interest is affected the authorities can confiscate any illegal gains and impose fines. In serious cases, computers and other equipment used to provide a network service can be confiscated.
2. Distinctions Between Searching and Linking Providers

The regulations draw a distinction between service providers that provide searching or linking services and those that provide storage space. The liabilities of each are different.

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.

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.

3. China Copyright Takedowns: Audiovisual and Sound Recordings in the Cloud

The National Copyright Administration of China has made it clear that the notice and takedown regime applies to cloud service providers. They must publish the notice and takedown procedure in an obvious place on their homepages. They must process notices and complaints in a timely manner and, moreover, must remove infringing materials, and delete or disconnect infringing links, within 24 hours of receiving the notice or complaint.

Here is a quick summary of the copyright takedown requirements for cloud providers in China:

  • Cloud storage providers must prohibit the upload or storage of the following works: (1) works that have been removed in accordance with the IPR owner’s notices; (2) works for which the IPR owners have made their right ownership announcements or statements available to the cloud service providers; and (3) works under heightened protection that are published by the relevant copyright authorities.
  • Cloud storage providers must prohibit the upload or storage the following works without authorization: (1) works that are currently being broadcast or televised or that are “hot selling”; (2) works published or produced by professional publishing, film, television or music institutions; or (3) other works that are “obviously” without authorization.
  • Cloud storage providers must strengthen their monitoring of the activities of users by requiring users to explain any suspect activities, such as abnormal logins or data fluctuations.
  • Cloud storage providers are prohibited from editing, recommending or changing the uploaded or stored works in any way or inducing or encouraging the users to share works without authorization or facilitating unauthorized sharing in any way.
  • Cloud storage providers must maintain users’ registration information and comply with official requests to provide information such as works that were uploaded, shared or stored by users, URLs or domain names.
  • Cloud storage providers must establish a mechanism for punishing repeat offenders, such as blacklists, suspensions or the termination of services.
4. China Copyright Takedowns: Register your Copyrights in China NOW

Our international intellectual property lawyers are handling more and more takedown work these days and one thing is clear: if you ever expect to have infringing content taken down the single most important thing you should do is register your copyright in China in advance. The reason for this is simple. If you attempt to invoke China’s notice and takedown system the internet service provider will put you to your proof. If you do not have a Chinese copyright registration certificate ready to go you will need to prove your copyright ownership.

Though Chinese network service providers each have their own requirements for this, all will require you provide a bunch of chain of title documents translated into Chinese. These documents will be essentially the same as those required to obtain a registration anyway. Once you have proven your ownership to a network service provider, you will have nothing to show for all the work, except, we would hope, the taking down of the infringing content in one instance. You will need to repeat the exercise again and again if numerous sites are involved or if your content goes back up again on a site from which it was taken down.

So speed up the takedown process, and have something to show for your work, by registering your copyrights in China NOW. If you have your chain of title ducks in a row it will be quick and inexpensive to get a registration. You will then be ready to strike.4