Thursday, January 28, 2010

2010: Beijing No. 1 Intermediate People's Court: "Baidu, Sohu/Sogou Are No Copyright Pirates"

- In June 2005 Shanghai Bu-sheng Music, a branch of EMI in China, filed a copyright infringement lawsuit against Baidu. Baidu was found liable by People's Court of Haidian District in Beijing for copyright infringement in September 16, 2005. Read more about it in Rouse's China Intellectual Property Express, Issue 265 here.
- In September 2006 zeven Hong Kong music companies brought a law suit against Baidu at Beijing No. 1 Intermediate People's Court. Baidu was acquited in November, because it would be merely linking to third parties, see IP Dragon's post about it here and again Rouse's China IP Express, Issue 265 here. International Federation of Phonographic Industry (IFPI), the organisation that represented the music companies was going to appeal.

- But in early 2008 three music companies brought a case against Baidu and Sohu/Sogou at Beijing No. 1 Intermediate People's Court.

The plainiffs were:
  • Universal Music;
  • Sony BMG Music Entertainment Hong Kong, and;
  • Warner Music Hong Kong.
However, again all defendants were cleared of the accusations. Read the Reuters article by Kate Holton here.

Marcia Ellis, Jean Zheng and Paul Weiss wrote a concise article about the 'Safe Harbour Protection in China: How China's New Regulations Protect the Information Dissemination Rights of Digital Networks'. Please take note that the "new" Regulation on Protection of the Right to Network Dissemination of Information entered into force on July 1, 2006.

The most important rule is article 23:

Article 23 Regulation on Protection of the Right to Network Dissemination of Information:
"A network service provider that provides searching or linking services to a service object, and has disconnected the link to a work, performance, or audio-visual recording infringing on an other’s right after receiving notification from the owner, shall not be liable for compensation; however, if it knew or should have known that the linked work, performance, or audio-visual recording has infringed upon an other’s right, it shall bear liability for joint infringement."

1 comment: said...

So what's the point here? That Baidu is claiming lack of knowledge of infringement? What kind of proof can be used to prove "knowledge"? At what point do "red flags" that a company has an infringement-based business model become self evident (this is the approach that some Chinese scholars and courts are advocating).

The frightening part is that deep linking is yesterday's problem, - User Generated Content sites and P2P programs provide even more opportunities for infringement, for more content (such as movies, and not merely music) with business models that may be based on even more limited ISP/ICP oversight. China furthermore lacks a notion of contributory infringement, or "inducement" - inducement was borrowed into US copyright law from patent law, and the recent patent JI (end of 2009), removed the inducement language I believe. Or is there something about these cases that we don't know about?