This part will introduce the issue of ISP liability for copyright infringement in China, which will include the phenomenon that Chinese usually can free download Music and movies. Also, this has caused a huge amount of losses in entertainment companies. Thus, many entertainment companies requires some infringed ISPs take responsibility for their losses and ask for a better provision of protecting the copyright in China when they export their product in China.
2.Definition of ISPISP的定义
This part will divide ISP into two categories: ICP and OSP. Generally, ISP refers to a platform which provides link and space for users. Thus, China adopted the safe harbor rule established by USA, applies secondary liability for ISP. However, in USA, the criteria of secondary liability are different, which contains ‘know or have reason to know’. In other words, it admits the presumption of awareness. In contrary, China does not include that. Thus, I think that it is essential to distinguish the ICP and OSP. If the ICP apply the same rule as OSP, it is easy to escape the liability, especially escape the contributory infringement liability.
3. Infringe behavior of ISPISP侵犯行为
This part will introduce the general behavior of ISP, in order to distinguisheasily ICP and OSP, and to judge if some behaviors are vicarious liability and contributory infringement. Internet access provider, internet presence provider and search information provider can be classified into OSP(here will introduce the main characteristic of these three infringements based on different subjects ) and the characteristic of ICP infringement.
4. ISP liabilityISP责任
In China, there is no clear regulation for ISP liability. It is only classified as copyright infringement liability and contributory liability. Thus, China usually adopts to learn from the USA definition. In USA, ISP liability usually includes three modes: direct liability, vicarious liability and contributory liability.Regard direct liability, it usually relates to the ICP, which directly provide the infringed content. Refer to vicarious liability, ISP have right to control the infringer and may obtain benefits through the infringed behavior (RTCV. Netcom, Marobie FL). If the ISP knows the infringed behavior and participate in this infringement, it should be belonged to contributory liability (Sega).
4.1 Principle of liability
This part will introduce the principle of fault and strict principle. And it will also explore the constitutive requirements of copyright infringement, especially the contributory infringement.
4.2 Restriction of liability
This part will introduce transitory digital network communication, system catching, information residing on a system or network at the direction of users and information location tools.
Then ISP liability and Safe harbor rule (YEN, 2000) will be presented. Then I want to introduce the Regulation on the Protection of the Right to Network Dissemination of Information. Act 2006, which was established on the basis of DMCA 1998. (Basically, China apply the safe harbor rule in the ISP issues; however, due to the different subjects (ICP and OSP), China may not apply the safe harbor rule—because if apply this rule, it may cause some infringers escape their liability)–also here will analyse the different principle which is more effective based on different subjects (principle of fault and strictprinciple).
5.1 ICP and OSP cases in US
Firstly, the definition of ICP and OSP will be introduced through some examples. Then through some cases: Grokster vs. MGM studios .INC, NAPSTR vs. A&M Records, 20 Twentieth Century Fox Corp& Ors vs. British TelecommunicationsPlc. (2011) to present how the safe harborapply to these cases and discuss rationality the principle of fault for these cases (also this part will discuss the If ISP directly infringed the copyright to distinguish the ICP and OSP).
Sony ltd is considered as no contributory liability, because it is presumed to have no reason to know the infringement (principle of fault).
5.2 Compare with Chinese cases
ICP: Siilu ltd (2014), Sillu is website included BBS which charge member through subscriptionfor movies. It provides more than 10000 movies and a considerable numbers of music and software without authorized. The CEO rejected to accept the liability for copyright infringement because he thought he deleted the movies when he was informed. Finally, the court jugged the siilu is responsible for copyright infringement, however, some members in this BBS is no liable for copyright infringement based on the evidence that they have no object to make profit and they don’t know they have infringed the copyright —this case will be argued that the if safe harbor is suitable when it apply to ICP, entertainment industry may continue suffering from losses—contributory infringement
Also, another case, the ICP have escaped the contributory liability by the defense that they are unaware of users infringed copyright. Users download music from the 163 website and make them as telephone ring.(Music Copyright Society of China v. Netease Com., Inc. and Mobile Communications Corporation)
OSP : The film Seven Swords network infringement by Shanghai Myrice Network Co., Ltd — Beijing Ciwen Film & TV Production Co., Ltd sued Shanghai Myrice Network Co., Ltd. for infringement. —-The court considered that the evidence only showed the Myrice network company provided links for users, while it is difficult to prove that this company provided the movie content and it has carried out remove obligation. Thus, the court regarded this Myrice as an OSP and it has no liability for infringement.
It can be seen that China doesn’t have definite rule about how to judge liability and doesn’t have its own principle for different subjects. Furthermore, it didn’t regulate the presumption of know the infringement. Thus, it caused some ISPs escape their contributory liability. Therefore, the conclusion of this &tar0& may be that the ICP should be applicable for strict principle and the OSP apply the principle of fault will be more effective to protect the movies copyright online in China (proposed conclusion).
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Zhou S, The copyright protection of cinematographic works in the in formation age 2005
Cases( here I met a problem .the Chinese cases are difficult to find a English version)
Grokster vs. MGM studios .INC
NAPSTR vs. A&M Records
20 Twentieth Century Fox Corp& Ors vs. British TelecommunicationsPlc. (2011)
Beijing Ciwen Film & TV Production Co., Ltd v. Shanghai Myrice Network Co., Ltd.
Siilu ltd (2014)
Music Copyright Society of China v. Netease Com., Inc. and Mobile Communications Corporation