Chinese characteristics

Editor's note: While the Internet offers great opportunities for businesses due to the extensive range of customers, copyright piracy is a global challenge for content providers. In addition to protecting their own content, businesses are also challenged by the protection of customer data in today's online world. How do rights holders effectively protect copyrighted works in china? Given the fact that in China most websites do not have a formal privacy policy, how do Internet users expect the Chinese legal framework to protect their personal privacy?

Richard W. Wigley, a consultant of King & Wood's IP Litigation Group in Beijing, gives a comparison of laws and practices in China and the United States on copyright enforcement and privacy protection over the Internet.

China Business Weekly will publish the article in the following weeks. Below is the second part of it. Some minor changes have been made to the author's original article for editorial purposes. The views expressed here are the author's own.

Administrative enforcement

The primary vehicle for copyright enforcement in China is administrative enforcement through the National Copyright Administration (NCA) and Provincial Copyright Departments (PCDs).

As noted by the State Intellectual Property Office (SIPO), "in 2007, departments of copyright administration of all levels over the country inspected 548,646 business units, banned 13,170 illegal business units, uncovered 1,224 hidden illegal units, imposed 9,816 administrative penalties, and transferred 268 cases to the judicial authorities." There are over twice as many cases of administrative enforcement through the NCA and the PCDs as there are adjudications through the court system.

Administration of copyrights in China is, however, a much more complicated and less homogeneous situation than in the United States. If only it were as simple as in the US where the US Copyright Office reigns supreme.

The key difference is that in China, copyright is managed in a much more decentralized manner through not only the NCA, but also through PCDs, with the exception of software copyrights, which must be registered with the NCA.

In regards to enforcing copyright over the Internet, the NCA and PCDs rely not only on the basic PRC Copyright Law, but also on additional regulations, such as the Administrative Procedures for Protection of Copyright on the Internet (Copyright Procedures), which were jointly issued by the NCA and then Ministry of Information Industry in 2005 in response to growing copyright infringement over the Internet.

The subsequent Regulations on Protection of Information Network Transmission Rights, promulgated by then Ministry of Information Industry of China, provide copyright owners with additional protections regarding transmitting works online.

These statutes create a legal framework, which provides copyright holders in China with the necessary statutory basis for effectively bringing actions against online infringers.

Additional protection of copyright to audio-visual works online in China can be obtained through the State Administration of Radio, Film and Television (SARFT), as evidenced by its recent "takedown" of numerous allegedly infringing online video websites. The statutory authority for such actions is based upon the Administration of the Broadcasting of the Audio-Visual Programs on the Internet and other Information Networks.

Of key importance to copyright owners when dealing with infringers on the Internet is the administrative mechanism to "take down" the offending content.

In the United States, the Digital Millennium Copyright Act (DMCA) has provisions for "take down" notices so that websites can, when informed of infringing activity, notify the infringers in a timely manner and "take down" the infringing material without any liability under the DMCA's Safe Harbor provisions.

An example of utilizing this "safe harbor" could be seen when Google's YouTube subsidiary argued that it was not liable for infringement claims brought by content provider, Viacom, which claimed that YouTube had knowingly allowed the posting of infringing content.

As with the takedown notices of the DMCA, the Copyright Procedures in China provides similar protection to copyright owners and a "Safe Harbor" from liability for websites which were previously unaware of the infringing activities.

Though there have been calls from the Copyright Union of the Internet Society of China to "streamline" the "takedown" process of the Chinese Copyright Administration, the overall administrative protection available to online copyright holders in China has been greatly improved and provides a viable option for copyright protection on the Internet.

(China Daily 11/24/2008 page9)