The Tort Law and internet service providers

For the first time, China has a specific law on torts. Passed on 26th December 2009, the Tort Law will come into effect on 1st July 2010.

The new law deals little with IP rights protection. However, pursuant to Article 36 of the law, an internet service provider (ISP) will be held jointly and severally liable for the infringing acts of a website operator that uses its services if it is aware that the content provided by the website operator infringes the rights of another party and it does not take necessary measures to remove the infringing content from its server or otherwise make the content inaccessible. This article also expressly provides that the rights owner is entitled to serve notice on the ISP requiring it to take the necessary measures to remove the infringing content.

There is some existing legislation which punishes ISPs for aiding and abetting infringement.

In relation to copyright, the Supreme People's Court's Interpretation of Several Issues Relating to the Application of Law to Disputes over Copyright on Computer Networks (2006) contains provisions similar to those in the new Tort Law.

For trademarks, Article 50(2) of the Trademark Implementing Regulations provides that the act of intentionally providing facilities such as storage, transport, mailing and concealment for the purpose of infringing the exclusive trademark rights of another party constitutes contributory infringement. It can be argued that the provision of internet services constitutes a type of facility provision prohibited by the article.

In terms of patents, the loose language of Article 148 of the General Principles of Civil Rights, which provides that a person who aids and abets another person in tortious activities should be held jointly and severally liable, can provide some remedy to a patentee.

However, the clear wording of Article 36 of the Tort Law provides an effective way to deal with IP rights infringement on the Internet.