Examining service provider liability for copyright infringement

The unauthorised dissemination of copyright works through the Internet represents a major challenge for copyright owners worldwide. Unfortunately, tracking and taking action against every online infringer is both ineffective and technically difficult. Therefore, holding network service providers liable for infringing activities by network users is the key to combating online copyright infringement effectively.

The Supreme People’s Court Judicial Interpretation on the Provisions of the Supreme People’s Court Concerning Certain Questions on the Applicable Laws in the Trial of Civil Dispute Proceedings involving Infringement of Information Network Dissemination Rights, which came into force on 1st January 2013, addresses this issue and sets out the situations in which network service providers can be held liable for the infringing activities of network users.

The provisions consist of 16 articles. In particular, Article 7 stipulates that service providers shall be held liable for aiding or abetting the infringing behaviour of network users in the course of providing network services. "Abetting" infringement means inducing or encouraging infringing activities of network users, whereas "aiding" infringing behaviour is defined as having actual or constructive knowledge of network users’ infringing behaviour without taking the necessary measures to stop such behaviour, or providing support for such infringement.

Article 8 specifies that in determining whether a service provide is liable for abetting or aiding infringement, the court shall refer to its fault. In this regard, it is specified that the court shall not find fault on the part of the service provider for failing to examine the infringing behaviour of users on its own initiative or where the service provider can prove that infringement is difficult to detect, notwithstanding that reasonable and effective measures have been implemented. The factors which the court should take into account in determining constructive knowledge of providers are specified in Articles 9, 10 and 12.

The provisions provide clear guidelines for Chinese courts in determining the vicarious liability of service providers for copyright infringement. As a result, the provisions are expected to enhance the effectiveness of copyright protection in China.