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REGULATIONS ON ADMINIS-TRATIVE PROTECTION OF COPYRIGHT ON THE INTERNET
Edward H. H. Liu
On 30 April 2005 the PRC’s National Copyright Administration and Ministry of Information In-dustry (MII) promulgated the Regulations Gov-erning Administrative Protection of Copyright on the Internet, which took effect on 30 May 2005. The Regulations are intended to strengthen the administrative protection of the right to disseminate information via computer networks in Internet information service activi-ties, and to regulate administrative law en-forcement activities. Their main content is as follows:
The Regulations apply to Internet information service (IIS) activities whereby functions such as the uploading, storage, linking, and search of content such as written works, audio re-cordings, and video recordings, are automati-cally provided via the Internet according to commands of Internet content providers, without the stored or transmitted content un-dergoing any editing, alteration, or selection. Conversely, the direct provision of Internet content in IIS activities is regulated by the Copyright Law.
Under Article 5 of the Regulations, if a copy-right holder discovers that content dissemi-nated on the Internet infringes its copyright, on its giving written notice to the Internet in-formation service provider (IISP), the IISP should immediately take steps to remove the offending content, and should retain the copyright holder’s written notice for a period of six months. But Article 7 of the Regula-tions provides that if an IISP has removed content on the basis of a written notice from a copyright holder, the Internet content provider (ICP) may issue a counter-notice to both the IISP and the copyright holder stating that the removed content does not infringe copyright. After the issuance of such a counter-notice, the IISP may reinstate the removed content, and will not be subject to administrative sanc-tions.
Because it is not feasible for an IISP to review all the Internet content provided by ICPs, IISPs should not assume excessive legal li-ability for Internet infringements of copyright. Therefore, Article 11 of the Regulations pro-vides that only where an IISP is aware that an ICP is engaging in acts of copyright in-fringement via the Internet, or, if the IISP was previously unaware of such acts, it fails to remove infringing content after being given written notice to do so by a copyright holder, and where the public interest is also harmed, can copyright administrative agencies order an IISP to cease its infringing actions, and im-pose administrative penalties, including con-fiscation of unlawful revenue, and a fine of up to three times the unlawful revenue, or a fine of up to RMB100,000 if the unlawful revenue cannot readily be calculated.
Article 14 of the Regulations provides that if the circumstances envisaged by Article 11 of the Regulations exist, and the copyright ad-ministrative agencies determine that the IISP concerned is involved in counterfeiting ac-tivities, or other serious violations, the MII, or the relevant provincial communications ad-ministration, should deal with the case in ac-cordance with the relevant laws and regula-tions.
Internet access providers must facilitate ad-ministrative enforcement
With regard to an IISP that the copyright ad-ministrative agencies have lawfully determined to be specifically engaged in counterfeiting ac-tivities, or other serious violations, the MII, or a provincial communications administration, may give notice to the corresponding Internet access service provider requiring it to undertake meas-ures to facilitate administrative enforcement.
