THE NEW RIGHT OF COMMUNICATION THROUGH THE INFORMATION NETWORK IN THE PEOPLE’S REPUBLIC OF CHINA

Abstract

While China has not joined the World Intellectual Property Organisation (WIPO) Copyright Treaty (WCT) or the WIPO Performances and Phonograms Treaty (WPPT), China amended its Copyright Law in 2001 in accordance with Article 8 of the WCT and Articles 10 and 14 of the WPPT. As a result, a new exclusive right of communication through the information network (hereafter referred to as the ‘right of network communication’) was introduced into the Copyright Law 1990 (amended 2001) for the benefit of copyright owners and performers and producers of sound and video recordings. The adoption of the right of network communication has raised the level of copyright protection as required by Article 8 of the WCT and Articles 10 and 14 of the WPPT. Consequently, uploading a work or recording onto a website for unauthorised distribution through the Internet will infringe the copyright owner, producer and performer’s (if the recording embodies the performance) right of network communication, unless the distribution constitutes fair use. However, since the provision on the right of network communication in the Copyright Law has a liberal application, more needs to be done to properly apply this right in complicated cases. In addition, the new technologies and business models appearing in China bring new challenges which call for clarification on the meaning of the network communication right, and either creating or improving provisions in the Copyright Law. For example, when a website provides hyperlinks to infringing MP3 files, or ‘pirated’ sites containing a number of infringing files, will the website operator be directly responsible for infringing the right of network communication, or for indirectly contributing to the infringing act done by the linked sites? Moreover, if the copyright owner sues the website providing the hyperlinks, but does not give a written notice warning it of the infringing nature of the linked files or sites in advance, can the court determine that the website has actual knowledge of the infringing act occurring on the linked site? There are no clear answers to these questions in the Copyright Law. To deal with these new challenges the State Council drated the Regulation on the Protection of the Right of Communication through the Information Network (‘Communication Right Regulation’),1 and the Supreme Court is trying to give interpretations on the right of network communication in specific cases. Nevertheless there are still disputes over the application of this new right. The competing interest groups, which include major record labels and the Internet industry, have opposing views, which makes it difficult for new legislation and judicial interpretation. This paper explores the nature of the new right of network communication in China and discusses its relationship with other exclusive rights, in particular the right of reproduction and the right of distribution. This paper also identifies the hotly debated questions in relation to applying the right of network communication and attempts to provide answers. In addition, the paper provides a proposal to introduce specific provisions of indirect copyright infringement and insights on the judicial test that should be applied by the courts in determining an act of indirect infringement.