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Supreme People's Court Juridical Interpretation on Several Issues Relating to Application of Law to Trial of Cases of Dispute over Copyright on Computer Network (2004.1.7)

Interpretation by the Supreme People's Court of Several Issues Relating to Application of Law to Trial of Cases of Dispute over Copyright on Computer Network

 

(Adopted at the 1144th Meeting of the Adjudication Commission of the Supreme People's Court on 22 November 2000; Amended at 1302nd the Meeting of the Adjudication Commission of the Supreme People's Court on 23 December 2003 and Entering into Force on 7 January 2004)

 

With a view to duly trying cases of disputes over copyright on computer network, this interpretation of the several issues relating to the application of law to this category of cases has hereby been 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. A case of dispute over copyright on computer network shall be under the jurisdiction of the people's court of the place where an infringing act is committed or where the defendant has his or its domicile. The places where infringing acts are committed shall include places where equipment used to carry out accused infringing acts, such as network servers or computer terminals, etc. is located. Where the place in which an infringing act is committed or in which the defendant has his or its domicile is difficult 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 protected under the Copyright Law shall include the digital form of all the categories of works specified in Article 3 of the Copyright Law. Other achievements of intellectual creation shall be accorded the protection by the people's court which cannot be categorised as the works enumerated in Article 3 of the Copyright Law and which are original in the field of literature, art and science, and reproducible in some tangible form.

 

Article 3. Except that the copyright owner otherwise states, or the press or an Internet service provider (ISP) states on his or its behalf with entrustment thereby to this effect, 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 infringement. However, reprinting and adaptation going beyond the scope of a work reprinted in the press shall be established as 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, pursuant to the provision of Article 130 of the General Principles of the Civil law, 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 of another person's copyright, or being warned by the copyright owner with solid evidence, and failed to take measures to remove and eliminate the infringing contents so as to eradicate the consequence of the infringement, the people's court shall investigate it and the network user, and impose joint liability thereon pursuant 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 an Internet service provider has obtained clear knowledge of, and uploads, transmits or supplies, method, means or material used specially for intentionally circumventing or destroying another person's technological measures for the protection of copyright, the people's court shall investigate the Internet service provider pursuant to the provision of Article 47 (6) of the Copyright Law at the litigant request of an interested party and according to the specific circumstances of the case.

 

Article 8. Where any copyright owner who, upon finding out the infringing information, warns the Internet service provider about this or requests for the network registration material of the infringer is unable to produce proofs of his identification, ownership of the copyright and the circumstance of 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 the measures, the copyright owner may, before instituting legal proceedings, request the people's court for decision on cessation of the relevant act and for property/evidence preservation, and may, when instituting legal proceedings, request the people's court for its decision first on cessation of the infringement, removal of impediment and/or elimination of ill effect, and the people's court shall give the permission.

 

Article 9. Where any Internet service provider takes the 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 to hold the Internet service provider 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 where the accused infringer claims for the damages because of injury it or he has suffered due to the measures taken by the Internet service provider, the people's court shall decide to order the person giving the warning to be liable the damages.

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