Recently, the Sino-British copyright seminar themed “Sino-British Copyright Exchanges and Cooperation in the Digital Era”, co-hosted by National Copyright Administration of the People’s Republic of China (NCAC), Intellectual Property Office of the United Kingdom (IPO), and British Embassy Beijing, was held in Beijing. The copyright managers, experts and scholars from China and the UK shared experiences of copyright protection in the digital era, and discussed important issues such as copyright system construction, rights management and international cooperation.
Infringement behaviors are becoming more secretive in the digital era
“No matter where the network technology will lead us to, one thing should remain unchanged, that is, the principle of ‘authorization comes before utilization’ under the China’s Copyright Law shall be applied all the time.” said Yu Cike, Director General of Copyright Department of NCAC, in many occasions.
The principle of “authorization comes before utilization” is a bottom line set up by the Copyright Law. With the advance of copyright protection, most people have kept this in mind, however, those putting profit first are attempting to cross this line. As we all know, China had a rather late start in copyright protection, despite the government has been enhancing the efforts, infringement and piracy are still rampant. With the advances in technology, especially in the digital era, infringement behaviors are becoming more secretive.
According to Zheng Xiaofei, Associate Researcher of Law Enforcement Division, Copyright Department of NCAC, infringing contents were displayed on infringing websites in the past, nowadays, however, those contents are often distributed in a more secretive manner, such as via QQ Group, Tieba, Chat Room & Forum or Wechat Moments, which have a great chance to get past law enforcement efforts.
In addition, infringement can arise beyond the boundary. For example, the place where a domain name is registered, the place where the site server is located, and the place where the site operator is located may not be the same one, and sometimes may even in different countries or regions. Therefore, it’s not easy to spot copyright infringement and piracy. As well, a lot of infringers often make use of time and place of occurrence to play tricks on law enforcement. For example, some infringers exercise control over the time when infringing works are uploaded. That is, they often distributed infringing works at night when only a small number of users are surfing the Internet. These are all barriers to law enforcement.
There is also a trend that online and offline copyright infringement and piracy, and those committed via conventional network and mobile network are becoming more intertwined, interconnected, interpenetrated and interrelated. Thus, copyright infringement and piracy have never been more complex and secretive. It is reported that revenue of pirate sites is primarily from advertising. According to relevant statistics, the market scale of Internet advertising exceeded 200 billion yuan in 2015, larger than the total of four traditional forms of media advertising. While 90% of the total revenue of pirate sites comes from advertising. Also, pirate sites have a good number of page views, which can attract some small and medium-sized enterprises.
The UK is the world’s first country to enact laws for intellectual property protection. However, it cannot eliminate copyright infringement and piracy against the proliferation of new technologies in the digital era. According to Emma House, Trade and International Director of the Publishers Association, the gross output of UK’s publishing industry has reached £ 4.6 billion and is growing rapidly.
It’s the mission of publishers to conduct high-end academic researches if they have the funds, and disclose research results to readers. However, in the digital era, many academic journals have suffered from different types of piracy, which not only bring harm to authors, but also impede future investment in scientific researches. The Publishers Association has been working to safeguard the rights of members, especially the copyright in academic journals. In this process, some pirate organizations are found to disseminate the research results of members through illegal means for huge profits. In this regard, the Association has made great investment to collect evidence and conduct investigation, and then seek assistance from law enforcement agencies to safeguard rights. However, the whole process will take a long time, and no satisfactory progress has yet been made.
In addition, English textbooks are often pirated in China. Some poor-quality textbooks have been put on the market and been widely used among primary and secondary school students, which have adverse impact on basic education.
Copyright enforcement faces more pressures
“In light of rampant infringement in the digital era, we hope to further cooperate with National Copyright Administration of China to approach the challenges faced by copyright owners. Of course, we must know that we can also take legal means to protect copyright.” said Emma House.
Having been working to safeguard rights in China for years, Emma House shared some views on this issue. First, some local law enforcement of cultural markets is facing great pressure, especially when dealing with copyright cases, as they lack technical knowledge in this filed. Second, administrative sanction in some cases remains to be intensified, as some penalties cannot defer copyright infringement and piracy. Furthermore, in sharp contrast to infringers, copyright owners usually need to spend a long time to collect evidence when safeguarding rights, especially when infringement upon some academic journals has never been so complex. This will involve more energy of copyright owners to better respond. Emma House proposed that: “I hope administrative enforcement and criminal enforcement can be further integrated. Cases involving serious administrative punishment should be handed over to judicial organs. Some typical cases should be widely publicized for closer cooperation between judicial organs and administrative organs.”
In this regard, Zheng Xiaofei said that China has been taking a dual system of administrative protection and judicial protection, namely the cohesion of administrative law enforcement and criminal justice. In general, if a case subject to investigation of an administrative organ is proved to have constituted criminal offence, the administrative organ shall transfer the case to the applicable judicial organ according to relevant provisions. Besides, according to the Office of the National Leading Group for Combating IPR Infringements and Counterfeits, there are relevant provisions applicable to the transfer of cases involving counterfeits. That is to say, there exists legal basis for administrative organs to transfer cases. If the conditions of transfer are not satisfied, administrative organs would give administrative penalties accordingly.
When it came to challenges to judicial trials in the digital era, Zhang Xiaoxia, Presiding Judge of Trial Supervision Tribunal, Beijing Intellectual Property Court said that in 2016 the court received a total of 14,552 civil cases, of which copyright disputes constituted over 80% in first instance. In copyright disputes, the cases involving the right of dissemination via information network accounted for more than 60%. In these network infringement cases, the challenges to judicial trials were mainly posed from the qualitative and quantitative aspects. In this regard, Zhang Xiaoxia proposed that the challenges in qualitative terms can be explained from two dimensions, one is liability attribution, and the other is behavior judgment. Judges should not remain status-quo when handling network infringement cases. Only by applying new technologies to legal means can they make correct judgment.
In addition, the challenges in quantitative terms also have a great impact on judicial trials, as it involves compensation issue. “At present, liquidated damages are applied to more than 95% of cases for which the court decided to award damages. However, this has invited wide debates.” said Zhang Xiaoxia. On the one hand, the copyright owners are not satisfied, claiming that the damages are not enough. On the other hand, this does give birth to some profitable litigation, which has direct correlation with network development. In this regard, the court has launched researches, and invited representatives from various industries and collective administration organizations to the court for discussion. According to the investigations, the value in use of intellectual property is proved to be the key in determination of damages, as it’s much more variable and diverse. Zhang Xiaoxia indicated that, through discussions with representatives from various industries, it’s found that the losses of copyright owners and the sources of profits of defendants are too complicated to be figured out in the network environment, many of which depend on what operation model has been taken, which may be embodied in advertising fees or page views. Hence, the true value of works involved may not be determined if there is no insight into the operation model. This is a challenge posed by network development to judicial trials.
The two sides are joining force to combat network infringement and piracy
As early as 2010, China and the UK concluded the Memorandum of Understanding on Sino-British Copyright Strategic Cooperation. Under the framework of the Memorandum, the two sides will have high-level exchanges every year. The governments will also bring together experts and scholars to analyze and discuss new trends and issues, aiming to find more effective solutions, and better promote the development of copyright industries of the countries.
According to Ros Lynch, Copyright and IP Enforcement Director, IPO, in order to fight online infringement, the UK government has set up a police force to crack down on cyberspace tort and a task force to eradicate illegal set-top boxes and illegal online advertising from the sources. In addition, a coordination mechanism applicable to search engine service providers has been established to enable them to better protect copyrights.
The Chinese government also has been taking a tough stance against network infringement and piracy, especially in Jianwang Campaign. This campaign, as an annual action initiated in 2005, is launched by NCAC in conjunction with Office of the Central Leading Group for Cyberspace Affairs, Ministry of Public Security, Ministry of Industry and Information Technology to combat online infringement and piracy, and has achieved remarkable effects. According to Zheng Xiaofei, law enforcement agencies investigated 514 administrative cases in Jianwang Campaign last year, involving 4.67 million yuan administrative penalties. Among them, 33 cases were handed over to judicial organs, and 290 pirate sites were removed. Last year, Jianwang Campaign had three key tasks, namely, special rectifications on copyright of network literature, APP, and online advertising alliance.
Zheng Xiaofei said that the rectification on online advertising alliance mainly drew lessons from the experience of IPO. Last year, NCAC, in conjunction with State Administration for Industry and Commerce of China, released a blacklist of pirate sites related to online advertising alliance. By doing so, on the one hand, the online advertising alliance will be urged to exercise self-management to establish a sound internal copyright mechanism; on the other hand, the enterprises joining the online advertising alliance will be guided to take actions against the pirate sites on the blacklist, i.e. to cease the release of advertising on such sites, or to expel such sites from the alliance. Therefore, the profit chain of pirate sites will be destroyed, and a sound environment for copyright protection will be created.
In 2010, NCAC officially launched a campaign in which video sites are regulated for copyright protection. In this process, the regulated sites were required to provide authorization documents for top 50 films and TV series in terms of views. The authorization documents must be true and complete; otherwise, the sites were urged to provide further materials. If no authorization was available, or the documents had expired, the sites shall release the relevant works online.
This campaign has made remarkable progress since its inception a few years ago, and been gradually expanded to other areas. For example, 20 large-scale music sites and 10 large-scale network disk businesses have been kept under regulation. Last year, with the launch of special rectification on copyright of network literature, a great number of network literature businesses have accepted the investigations. Thanks to the flexible and pragmatic mode of regulation, on the one hand, competent authorities can crack down on all kinds of piracy, and launch investigations against the businesses that are subject to administrative sanction; on the other hand, businesses will be guided to conduct integrity management and cooperate with copyright owners, so as to excel synergy to safeguard online copyright.
Except for routine regulation and circulation of notices on self-examination and correction of sites, NCAC may also launch discussions with person in charge of sites, supervise and handle key cases, and adopt other centralized approaches to combat copyright infringement and piracy in these campaigns. In this process, the disputes and conflicts between the regulated sites can be resolved in a more efficient manner.
Besides, NCAC has officially launched an early warning protection system for key works since 2014. “At the very beginning, only films and TV series are within the scope of protection. Copyright owners need to present a list of works to NCAC and provide complete authorization documents related to the works. Then, NCAC will review these documents, and decide whether the works are eligible to be included in light of their influence, category, online release date, etc. Finally, a list of works that are kept under early warning protection will be released at NCAC’s official website.” said Zheng Xiaofei. As of 2014, NCAC has published 23 lists of key works, involving a total of 627 hot films and TV series. Such efforts have not only deferred illegal online dissemination of key films and TV series to a great extent, but also won affirmation from and encouraged active participation of copyright owners.
The 2017 Jianwang Campaign will be launched in July this year, and the preparation of work program is under progress. According to reports, NCAC will adopt centralized control and regulation approaches through administrative and criminal enforcement, so as to draw on comprehensive governance to deal with and crack down on online infringement and piracy, and further regulate network order for copyright protection. By doing so, the concept of “authorization comes before utilization” in the transmission of cinematographic will go deep into the hearts of the public.
Author：Zou Ren
Source: China Press Publication Radio Film and Television Journal
Update：June 22, 2017