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Appendix attached: Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Infringement of Information Network Communication Rights
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Article 69 of the Draft of the New Copyright Law stipulates that when network service providers provide pure network technology services such as storage, search, or linking to network users, they shall not bear the obligation of information review related to copyright or related rights. If network users use network services to commit infringement of copyright or related rights, the infringee may notify the network service provider in writing, requiring them to take necessary measures such as deletion, blocking, and disconnection of links. If a network service provider takes necessary measures in a timely manner after receiving notification, it shall not be liable for compensation; Those who fail to take necessary measures in a timely manner shall bear joint and several liability with the network user. If a network service provider knows or should know that a network user has infringed upon copyright by using its network services and fails to take necessary measures, they shall bear joint and several liability with the network user.
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Appendix: Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving Infringement of Information Network Communication Rights
Fa Shi [2012] No. 20
The Supreme People's Court
Regarding the Trial of Infringement of Information Network Communication Rights
Provisions on Several Issues Concerning the Application of Law in Civil Dispute Cases
(Adopted at the 1561st meeting of the Judicial Committee of the Supreme People's Court on November 26, 2012)
In order to correctly hear civil disputes over infringement of the right of information network communication, protect the right of information network communication according to law, promote the healthy development of the information network industry, and safeguard public interests, in accordance with the General Principles of the Civil Law of the General Principles of the Civil Law of the People's Republic of China, the Tort Liability Law of the China, the Copyright Law of the China, the Civil Procedure Law of the People's Republic of China and other relevant legal provisions, and in combination with the actual trial, Develop this regulation.
Article 1: When trying civil disputes involving infringement of the right to information network dissemination, the people's court shall, in exercising its discretion in accordance with the law, take into account the interests of the rights holder, network service providers, and the public.
Article 2 The information network referred to in these regulations includes computer internet, broadcasting and television network, fixed communication network, mobile communication network, and other information networks with electronic devices such as computers, televisions, fixed telephones, and mobile telephones as terminals, as well as local area networks open to the public.
Article 3: Unless otherwise provided by laws and administrative regulations, if network users or network service providers, without permission, provide works, performances, audio and video recordings that the right holder enjoys the right to information network dissemination through the information network, the people's court shall determine that they constitute an infringement of the right to information network dissemination.
If a work, performance, audio or video recording is placed on an information network by uploading it to a network server, setting up shared files, or using file sharing software, so that the public can download, browse, or otherwise obtain it at a time and place selected by an individual, the people's court shall determine that it has committed the provision behavior specified in the preceding paragraph.
Article 4: If there is evidence to prove that a network service provider and others jointly provide works, performances, audio and video recordings through division of labor or cooperation, which constitutes a joint infringement, the people's court shall order them to bear joint and several liability. If a network service provider can prove that it only provides network services such as automatic access, automatic transmission, information storage space, search, linking, and file sharing technology, and claims that it does not constitute a joint infringement, the people's court should support it.
Article 5: If a network service provider substantially replaces other network service providers in providing relevant works to the public by providing webpage snapshots, thumbnails, or other means, the people's court shall determine that it constitutes the act of providing.
The provision provided in the preceding paragraph does not affect the normal use of the relevant work, and does not unreasonably harm the legitimate rights and interests of the right holder of the work. If the network service provider claims that it has not infringed on the right to information network dissemination, the people's court shall support it.
Article 6: If the plaintiff has preliminary evidence to prove that the network service provider provided relevant works, performances, audio and video recordings, but the network service provider can prove that it only provided network services and was not at fault, the people's court should not consider it as constituting infringement.
Article 7: If a network service provider instigates or assists network users in infringing on the right to information network dissemination when providing network services, the people's court shall order them to bear the liability for infringement.
If a network service provider induces and encourages network users to engage in infringement of the right to information network dissemination through language, technical support, reward points, etc., the people's court shall determine that it constitutes instigation infringement.
If a network service provider knowingly or should have known that network users have infringed on the right to information dissemination through network services, but has not taken necessary measures such as deleting, blocking, disconnecting links, or providing technical support, the people's court shall determine that it constitutes an infringement of assistance.
Article 8: The people's court shall, based on the fault of the network service provider, determine whether they bear the responsibility of instigating or assisting in infringement. The fault of network service providers includes knowing or should know about the infringement of information network dissemination rights by network users.
If a network service provider fails to actively review the infringement of information network dissemination rights by network users, the people's court should not determine that they are at fault based on this.
If a network service provider can prove that reasonable and effective technical measures have been taken, but it is still difficult to detect the infringement of information network dissemination rights by network users, the people's court shall determine that they are not at fault.
Article 9: The people's court shall, based on whether the specific facts of infringement of the right to information dissemination by network users are obvious, and taking into account the following factors comprehensively, determine whether the network service provider constitutes knowledge:
(1) Based on the nature, method, and likelihood of infringement of services provided by network service providers, the ability to manage information that should be possessed;
(2) The type, popularity, and apparent degree of infringement information of the works, performances, audio and video recordings disseminated;
(3) Has the network service provider actively selected, edited, modified, recommended, etc. for works, performances, audio and video recordings;
(4) Has the network service provider actively taken reasonable measures to prevent infringement;
(5) Does the network service provider set up convenient programs to receive infringement notifications and respond reasonably to infringement notifications in a timely manner;
(6) Has the network service provider taken appropriate reasonable measures against repeated infringement by the same network user;
(7) Other relevant factors.
Article 10: When providing online services, if a network service provider recommends popular film and television works by setting lists, directories, indexes, descriptive paragraphs, content introductions, etc., and the public can directly obtain them through downloading, browsing, or other means on their website, the people's court may determine that they should be aware that network users have infringed on the right to information network dissemination.
Article 11: If a network service provider directly obtains economic benefits from the works, performances, audio and video recordings provided by network users, the people's court shall determine that it has a high duty of care for the infringement of information network dissemination rights by the network user.
Network service providers who advertise specific works, performances, audio and video products to obtain profits, or obtain economic benefits that have other specific connections with the works, performances, audio and video products they disseminate, shall be recognized as directly obtaining economic benefits as stipulated in the preceding paragraph. The charging of general advertising fees, service fees, etc. by network service providers for providing network services does not fall within the scope of this provision.
Article 12: In any of the following circumstances, the people's court may, based on the specific circumstances of the case, determine that the network service provider providing information storage space services should be aware that the network user has infringed on the right to information network dissemination:
(1) Placing popular film and television works on the homepage or other main pages that can be clearly perceived by network service providers;
(2) Proactively selecting, editing, organizing, recommending the themes and content of popular film and television works, or setting up specialized rankings for them;
(3) Other situations where it is evident that relevant works, performances, audio and video recordings have been provided without permission and reasonable measures have not been taken.Article 13: If a network service provider fails to take necessary measures such as deleting, blocking, or disconnecting links in a timely manner after receiving a notice submitted by the right holder through letters, faxes, emails, etc., the people's court shall determine that it is aware of the relevant infringement of the right to information network dissemination. (Note on this website: If there is any infringement of information/images on this website, please send the information link address to 4977832915@qq.com Email, we promise to process and reply to you within 1 working day! )
Article 14: The people's court shall determine whether necessary measures such as deletion, blocking, and disconnection taken by network service providers are timely, based on the form of notification submitted by the right holder, the accuracy of the notification, the difficulty of taking measures, the nature of network services, the type, popularity, quantity, and other factors of the works, performances, audio and video recordings involved.
Article 15: Civil disputes involving infringement of the right to information network dissemination shall be under the jurisdiction of the people's court of the place where the infringement occurred or the defendant's residence. (Note to this website: The registered address of this website/company is Licheng District, Jinan City, Shandong Province) The place of infringement includes the location of the network server, computer terminal, and other equipment that committed the accused infringement. If the location of the infringing act and the defendant's residence are difficult to determine or are located overseas, the location of the computer terminal and other equipment where the plaintiff discovers the infringing content can be considered as the location of the infringing act.
Article 16: From the date of implementation of these regulations, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Computer Network Copyright Disputes (Fa Shi [2006] No. 11) shall be abolished simultaneously.
Civil dispute cases involving infringement of information network dissemination rights that have not yet been finalized after the implementation of these regulations shall be governed by these regulations. If a party applies for a retrial or decides to conduct a retrial in accordance with the trial supervision procedure before the implementation of this regulation, it shall not apply to this regulation.
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