· Document Number：No.166 [2010] of the Higher People’s Court of Beijing

· Area of Law： Copyright

· Level of Authority： Local Judicial Documents

· Date issued：05-19-2010

· Effective Date：05-19-2010

· Status： Effective

· Issuing Authority： Higher People's Court of Beijing Municipality

Notice of the Higher People's Court of Beijing on Issuing the Guiding Opinions (I) on Several Issues Concerning the Trial of Cases Involving Copyright Disputes in Cyberspace (for Trial Implementation)
(No.166 [2010] of the Higher People's Court of Beijing, May 19, 2010)
The No.1 Intermediate People's Court of Beijing, the No.2 Intermediate People's Court of Beijing and the people's courts of all districts and counties:
The Guiding Opinions (I) of the Higher People's Court of Beijing on Several Issues Concerning the Trial of Cases Involving Copyright Disputes in Cyberspace (for trial implementation), deliberated and adopted at the 7th session of the Judicial Committee of the Higher People's Court of Beijing on May 17, 2010, are hereby issued to you for your earnest implementation. Please report the problems encountered in implementation to Civil Division III of this Court in a timely manner. If there is any discrepancy between these Guiding Opinions and the laws, regulations and judicial interpretations, the laws, regulations and judicial interpretations shall prevail.
Guiding Opinions (I) of the Higher People's Court of Beijing on Several Issues Concerning the Trial of Cases Involving Copyright Disputes in Cyberspace (for Trial Implementation)
I. Essential elements of an Internet service provider's liability for infringement
1. For an Internet service provider (ISP) to assume the civil liability for infringement upon the right of dissemination on information network, there shall exist four essential elements: illegal act, injury, causation between illegal act and injury and fault.
II. Determination and legal regulation of dissemination on information network
(I) Determination and legal regulation of dissemination on information network
2. Dissemination on information network refers to an act of uploading or otherwise placing works, performances or sound or video recordings on a network server open to the public, which enables the public to access such works, performances or sound or video recordings at a selected time and place.
Dissemination on information network is constituted as long as works, performances or sound or video recordings are uploaded or otherwise placed on a network server open to the public, which enables the public to download, browse or otherwise access online such works, performances or sound or video recordings at a selected time and place, and the party concerned need not adduce evidence on any actual downloading, browsing or otherwise access online.
3. Such services as automatic access, automatic transmission, information storage space, searching, linking and P2P (point-to-point) provided by an ISP for service receivers are technical and facility support for the network dissemination of information disseminated by service receivers, and do not constitute direct dissemination on information network.
4. Whether an ISP's act constitutes dissemination on information network shall generally depend on whether the disseminated works, performances or sound or video recordings are uploaded or otherwise placed by the ISP on a network server open to the public.
If the plaintiff claims that the form in which an ISP provides a service has made a user wrongly believe that the ISP is disseminating works, performances or sound or video recordings, but the ISP can provide evidence to prove that the service provided is only automatic access, automatic transmission, information storage space, searching, linking or P2P (point-to-point), the ISP shall not be determined to have conducted dissemination on information network.
5. An ISP, which claims that it only provides technical and facility services such as information storage space, searching, linking and P2P (point-to-point) but has a cooperative relationship in contents such as channels and columns with another ISP providing works, performances or sound or video recordings, may be determined to have conducted dissemination on information network based on the specific cooperation.
6. If an ISP providing the information storage space service conducts an examination of the subject, quality, contents, etc. of the works, performances or sound or video recordings provided by service receivers or conducts any selection, editing or organization related to the contents of the works, performances or sound or video recordings so as to decide whether to release them on the Internet, it shall be determined to have conducted direct dissemination on information network, unless the examination of contents other than copyright status is conducted as required by a law or administrative regulation or rule.
7. If the form of provision of a service by an ISP providing searching and linking services has made a user wrongly believe that it is providing works, performances or sound or video recordings, and the operator of a linked website claims that the service constitutes an infringement, it may be regulated under the Law against Unfair Competition.
8. An ISP, which claims that it only provides such services as information storage space, searching, linking and P2P (point-to-point) for the alleged infringing works, performances or sound or video recordings, shall provide evidence to prove its claim. If the ISP fails to provide evidence to prove that the alleged infringing works, performances or sound or video recordings are provided and placed on a network server open to the public by others, the ISP may be presumed to have conducted dissemination on information network.
9. Uploading or otherwise placing works, performances or sound or video recordings on a LAN open to the public, which enables the public to have access to them at times and places selected by the public, shall be dissemination on information network.
10. If an ISP provides the online broadcasting of works to the public according to a pre-arranged schedule on an information network, it does not constitute dissemination on information network, and shall be regulated by Article 10.1(17) of the Copyright Law.
(II) Nature of “snapshot” and related legal liability
11. If an ISP, when providing the searching service, generates copies of works, performances or sound or video recordings on it servers in the form of “snapshot” and provides them to the public on an information network, which enables the public to have access to such works at a selected time and place, the ISP shall be determined to have conducted dissemination on information network.
12. For an ISP claiming that its provision of webpage “snapshot” service is “provision of system cache service” as mentioned in Article 21 of the Regulation on the Protection of the Right of Dissemination on Information Network and it shall be therefore exempted from liability, if the “snapshot” service is provided by the ISP by storing in advance the alleged infringing works, performances or sound or video recordings on its network servers or the service does not meet the three exemption conditions as set out in Article 21 of the Regulation on the Protection of the Right of Dissemination on Information Network, this article cannot be invoked for liability exemption.
13. If an ISP uses works, performances or sound or video recordings disseminated on any other person's website in the form of providing webpage “snapshot”, which does not affect the normal use of such works, performances or sound or video recordings by such other person's website, does not unreasonably damage the legitimate rights and interests of such other person's website in such works, performances or sound or video recordings and thus does not substantially replace a user's visit to such other person's website, it may be determined as a reasonable use provided that other conditions prescribed by law are met.
III. Legal nature of network technical and facility services, determination of fault of a service provider and related application of law
(I) Legal nature of network technical and facility services
14. Where an ISP providing such services as information storage space, searching, linking or P2P (point-to-point) participates in or abets or helps others in the infringement upon any copyright, right of performer or right of producer of sound or video recordings on a network, if it is at fault, it shall be liable for contributory infringement.
15. The infringement by an ISP providing such services as information storage space, searching, linking or P2P (point-to-point) shall be predicated upon the direct infringement committed by others, i.e. a third party's dissemination of works, performances or sound or video recordings by using such services as information storage space, searching, linking or P2P (point-to-point) is an infringement upon others' right of dissemination on information network.
(II) Criteria for determination of fault of a provider of network technical and facility services
16. In the determination of the fault of an ISP providing such services as information storage space, searching, linking or P2P (point-to-point), whether the ISP knows or should have reasonably known the adverse effects of it act shall be examined. Whether the ISP knows or should have reasonably known the adverse effects of its act shall depend on the ISP's ability and extent of foreseeing, and differences between an average foreseeing level and a professional foreseeing level shall be considered. Generally, an ISP knows or should have reasonably known the adverse effects of its act, if it knows or should have reasonably known that another person's dissemination of the alleged infringing works, performances or sound or video recordings by using its services constitutes an infringement.
The term “Knows” means that an ISP actually knows the existence of an infringement, whereas the phrase “should have reasonably known” means that an ISP should realize the existence of an infringement from the obvious fact or situation of infringement.
17. Generally, an ISP providing such services as information storage space, searching, linking or P2P (point-to-point) shall not have the obligation of proactive advance examination and monitoring of whether another person's dissemination of works, performances or sound or video recordings by using its services constitutes an infringement.
Such an examination shall be conducted if it is required by the relevant law and related provisions.
18. If an ISP automatically provides such services as information storage space, searching, linking or P2P (point-to-point) on information network for the alleged infringing works, performances or sound or video recordings according to the instructions of service receivers, and does not conduct any editing, modification or selection of the alleged infringing works, performances or sound or video recordings, the ISP shall not be determined to be at fault, unless the ISP otherwise knows or should have reasonably known the existence of infringement.
19. Under any of the following circumstances, if an ISP providing information storage space service should have known and is able to know the infringement by the alleged works, performances or sound or video recordings, it may be determined to be at fault:
(1) the alleged infringing contents stored are audio-visual works in current season or currently being broadcast or shown, popular musical works, other works with high popularity or the related performances or sound or video recordings, and the above works, performances or sound or video recordings are placed on the homepage, other main pages or other positions obvious to the ISP;
(2) the alleged infringing works, performances or sound or video recordings are placed on the homepage or other main pages of BBS, and the ISP fails to take measures to remove them within a reasonable period of time;
(3) the alleged infringing audio-visual works which are professionally made with intact contents or audio-visual works in current season or currently being broadcast or shown are placed in a conspicuous position or are recommended, or a classification list of film and television works such as top chart or “film and television” channel is set;
(4) any selection, organization or classification of the alleged infringing works, performances or sound or video recordings uploaded by service receivers is conducted; or
(5) Other circumstances.
20. If, of its own accord, an ISP providing such services as searching, linking or P2P (point-to-point) makes classification or listing of the alleged infringing works, performances or sound or video recordings based on gathering, organization and sorting, and knows or should have known the infringement by the alleged infringing works, performances or sound or video recordings, it may be determined to be at fault.
(III) Application of law to P2P (point-to-point) service
21. If an ISP providing P2P (point-to-point) service is determined to have committed infringement for its participating in or abetting or helping others in the infringement, the provisions of Article 130 of the General Principles of Civil Law and Article 3 of the Interpretation of Several Issues Concerning the Application of Law in the Trial of Cases about Copyright Disputes involving Computer Network amended by the Supreme People's Court in December 2006 shall apply.
(IV) Exemption conditions for network technical and facility service providers
22. The exemption conditions for ISPs providing automatic access, automatic transmission, system cache, information storage space, searching and linking services as set out in Articles 20, 21, 22 and 23 of the Regulation on the Protection of the Right of Dissemination on Information Network shall only apply to the exemption of compensatory liability for damages; whether an ISP shall assume any other liability shall be determined in accordance with the provisions of the General Principles of Civil Law, the Copyright Law and other laws and regulations.
23. An ISP claiming that it meets the exemption conditions as set out in the Regulation on the Protection of the Right of Dissemination on Information Network shall bear the burden of proof of the relevant facts on which its claim is based.
24. The “alteration” as mentioned in Article 22 of the Regulation on the Protection of the Right of Dissemination on Information Network refers to the alteration of the contents of works, performances or sound or video recordings provided by service receivers.
The following acts shall not be deemed “alterations” of works, performances or sound or video recordings provided by service receivers:
(1) only altering the storage format of works, performances or sound or video recordings;
(2) adding website marks such as digital watermarks to works, performances or sound or video recordings; and
(3) adding advertisements to the beginning or end of works, performances or sound or video recordings or inserting advertisements in works, performances or sound or video recordings.
25. An ISP charging a standard fee from users as per time, flow, etc. for the information storage space service provided shall not be determined to “have directly gained economic interests from works, performances or sound or video recordings provided by service receivers” as mentioned in Article 22(4) of the Regulation on the Protection of the Right of Dissemination on Information Network.
Generally, the advertising fees charged by an ISP for the information storage space service provided shall not be determined as the directly gained economic interests; the advertisements added by an ISP to specific works, performances or sound or video recordings may be taken into account in the determination of the fault of the ISP as the case may be.
26. An ISP providing searching and linking services may be exempted from the liability of compensation for damages in accordance with Article 23 of the Regulation on the Protection of the Right of Dissemination on Information Network if the following two conditions are met: (1) the ISP providing searching and linking services does not know and should not have known the infringement by the linked works, performances or sound or video recordings, and (2) the ISP providing searching and linking services cuts off the link to the infringing works, performances or sound or video recordings in accordance with the provisions of this Regulation upon receiving a notice from the right owner.
27. A notice sent by the right owner to the ISP providing the information storage space or searching and linking service shall conform to the provisions of Article 14 of the Regulation on the Protection of the Right of Dissemination on Information Network.
28. If a notice sent to an ISP by the right owner does not include the network address of the alleged infringing works, performances or sound or video recordings, but the information provided in the notice is sufficient for the ISP to accurately locate the alleged infringing works, performances or sound or video recordings, the notice sent by the right owner may be determined to be a “warning with evidence” as mentioned in Article 4 of the Supreme People's Court's Interpretation of Several Issues Concerning the Application of Law in the Trial of Cases about Copyright Disputes Involving Computer Network.
29. Whether the information provided in a notice is sufficient to accurately locate the alleged infringing works, performances or sound or video recordings shall be determined by taking into account such specific factors as the types of services provided by the ISP, the file types of literary works, performances or sound or video recordings to be deleted or unlinked as requested by the right owner and the specificity of names of works, performances or sound or video recordings.
30. Where an ISP fails to timely delete or unlink the alleged infringing works, performances or sound or video recordings within a reasonable time limit after receiving a notice conforming to the provisions of Article 14 of the Regulation on the Protection of the Right of Dissemination on Information Network or a “warning with evidence” as mentioned in Article 4 of the Supreme People's Court's Interpretation of Several Issues Concerning the Application of Law in the Trial of Cases about Copyright Disputes Involving Computer Network from the right owner, if the contents of the notice are true, the ISP may be determined to be at fault and shall assume the corresponding liability for the expansion of damages.
31. Whether an ISP has timely deleted or unlinked the infringing works, performances or sound or video recordings within a reasonable time limit shall be determined by comprehensively taking into account such factors as the form of the notice sent by the right owner, the accuracy of the notice, the amount of files involved in the notice, the difficulty in deletion or unlinking and the nature of the network service.
IV. Technical Measures
32. The technical measures as mentioned in Article 26 of the Regulation on the Protection of the Right of Dissemination on Information Network refer to the technical measures taken to control the browsing or enjoyment or control the use of the works, performances or sound or video recordings for the protection of the legitimate interests of the right owner under the Copyright Law.
The technical measures taken for the following purposes shall not be determined as the technical measures protected by the Copyright Law:
(1) for realizing the tie-in sale of works, performances or sound or video recordings and products or services;
(2) for realizing the regional division of prices of works, performances or sound or video recordings;
(3) for destroying the computer systems of users using the works, performances or sound or video recordings without permission; or
(4) for any other purpose detrimental to the protection of public interest or irrelevant to the legitimate interests of the right owner under the Copyright Law.
33. The technical measures protected by the Copyright Law shall be effective technical measures. Whether a technical measure is effective shall depend on whether an average user can use a usual method to avoid or crack the technical measure. The effectiveness of a technical measure shall not be affected by a technical expert's capability of avoiding or cracking the technical measure in a certain way.
V. Determination of Website Operators
34. A website operator shall be the operator stated in the website registration and filing information or the information posted on the website. If the operator stated in the website registration and filing information is different from the operator stated in the information posted on the website, the two operators may be determined as joint operators unless there is evidence to the contrary.
35. Domain name holder registration information may serve as the preliminary evidence on the identity of a website operator, unless there is evidence to the contrary.