Complaining about Taobao's IPR Complaint System and a MOU

When the International Intellectual Property Alliance (IIPA) testified for the USCC Hearing on “China’s Intellectual Property Rights and Indigenous Innovation Policy,” April 25, 2011, it focused on the software and recorded music industry. However, they also wrote a letter about the overall IP record in China, see here.

"Sites such as Alibaba.com, Aliexpress.com, GlobalSources.com, Made-in-China.com, DHgate.com, Taobao.com, and Tradetang.com are among the top online marketplaces selling videogame circumvention devices, as well as being cited by industry as offering other copyright infringing products to consumers and businesses, including scanned copies of commercial bestsellers (trade books) and academic textbooks. Unfortunately, most of these sites are unresponsive to rights holder takedown requests."

Alibaba was the only one "commended for their cooperation with videogame right holders in the removal of infringing items".

Seems that Taobao is open to suggestions that can improve the prevention and cessation of trade of IPR infringing goods.

In Hanzhou, Zhejiang province, the internet task force of the Quality Business Protection Committee (QBPC), "the China association of enterprises with foreign investment", had a roundtable meeting with Taobao. Topic of discussion was the less than perfect Taobao IPR complaint system, read here.

Online shopping site Taobao.com signed a memorandum of understanding (MOU) with the International Publishers Copyright Protection Coalition in Beijing, see here a very brief report by the China Daily.

The golden rule expressed by Scottish sinologist James Legge, advertised at a bus stop,
sponsored by the Shenzhen Universiade 2011
photo: Danny Friedmann

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Online Copyright: Norms Or the Law, One Of Them Needs To Give In

On the road to respect for copyright there is not much traffic
Photo Danny Friedmann

Professor Ken Shao, director of China Law Programme of the Murdoch University in Perth, Australia, has an interesting article in the Global Times in which he persuasively explains that a balance between copyright protection and access to knowledge should be struck. Professor Shao points to the "expectation" issue and that internet users have to be made aware that their expectation to get everything online for free is not justified. There seems indeed a disconnect between the norms of internet users and the law. Then he questions whether Shanda Interactive Entertainment Ltd, who successfully sued Baidu before a Shanghai court, did so for the wrong reasons. The Shanghai People's Court decided that since Baidu had knowledge of the copyright infringements against Shanda, the ISP safe harbor provision did not apply.

Professor Shao's argument that copyright might overprotect and stifle creativity is valid as such, but does not apply to the decision of Shanda whether or not to sue Baidu. The reason Shanda sued Baidu because they wanted to stop the copyright infringements and be compensated for the damages inflicted upon itself. Nothing frivolous here. Commercial companies should use the law that is available to their best interests. That is their obligation they have towards their employees and stockholders. And the Shanghai court needs to apply the law regardless of who is the plaintiff and defendant, and not in a teleological way (towards a certain goal, in this case access of knowledge by Baidu users). In a moral sense professor Shao might be right if Baidu would not unfairly benefit and if the law was applied consistently (but then the law could be changed) to copyright holders, but his lofty expectations that commercial companies follow many moral principles might not be based in reality.

Although I do not completely agree with Professor Shao, I think his article is a great kick-off for further discussion on the issues copyright morality, a balanced copyright and rising awareness for the internet users about the topic. Read it here.

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Chinese Acceptance Of and Resistance Against Global Copyright Law

Jia Lu, affiliated with Tsinghua University and Ian Weber, affiliated with University of Southern Queensland, Australia wrote an interesting paper called: 'Internet Piracy Software in China: A User Analysis of Resistance to Global Software Copyright Enforcement'.

Jia Lu and Ian Weber try to find reasons for why the Chinese accepted global copyright law, but also resist it at the same time. "The study uses Mittelman and Chin's (2005) framework of Polanyi's (1957) counter-hegemony and Gramsci's (1971) counter-movements as a heuristic [commonsense rule (or set of rules) intended to increase the probability of solving some problem: IP Dragon] device to conceptualize the resistance points to globalization located within the dominant discourse on intellectual property rights, specifically Internet software piracy, by Chinese Internet users. Gee's (2002) discourse analysis framework is applied to produce seven recurring themes within online postings: cost, convenience, software companies, foreign developed countries, China's development, Chinese culture, and moral dilemma."

Read the paper of Jia Lu and Ian Weber, 'Internet Software Piracy in China: A User Analysis of Resistance toGlobal Software Copyright Enforcement', Journal of International and Intercultural Communication, November 11, 2009, 2: 4, 298 — 317 here.

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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."

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Two Encouraging Surveys: On Public Awareness and Business Attitudes of Intellectual Property Rights in Hong Kong

Selene Ng of Wilkinson and Grist wrote an article on the site of IAM Magazine about an encouraging outcome of a survey on public awareness of intellectual property protection by the Hong Kong population. The Survey on Public Awareness of Intellectual Property Right Protection 香港市民保護知識產權意識調查 2008 conducted by Mercador Solutions Associates Ltd., commissioned by the IP Department of Hong Kong. It showed that 96.3 percent of the surveyed group (1,003 repondents, response rate of 51.5 percent) considered that it was very/quite necessary to protect the IP rights in Hong Kong.

However, awareness does not necessarily convert into online behaviour that is respectful towards intellectual property rights. 78.6 percent stated that they probably/definitely would not pay to download songs, movies, games or ebooks. Why? The main reason for this was that purchasing legitimate content is “considered troublesome in purchasing online” (47.0%). When this group is downloading chances are that they access pirated content. So it is safe to assume that there is enough work to do for the intellectual property department of firms, such as Wilkinson and Grist, to enforce IPRs in Hong Kong. Read Ms Ng's article here.

Then there was another rather encouraging survey: Survey on Business Attitudes to Intellectual Property 香港商業機構知識產權意識調查 2008 conducted by Mercador Solutions Associates Ltd. , commissioned by the IP Department of Hong Kong (1,001 business establishments surveyed, response rate 30.3 percent) which showed that: 

• 98.3% of business establishments considered intellectual properties (e.g. patents for invented products / technology, design, logo or brand name) of the surveyed group in Hong Kong valuable assets of a company;
• 93.7% of the business establishments considered that it was very/quite necessary to protect IP rights in the business environment of Hong Kong.
  

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New Face At Baidu Awaits Considerable Intellectual Property Conflicts

Ms Loretta Chao of the WSJ's China Journal wrote about the appointment of the new general manager digital entertainment of Baidu.com, Inc., Catherine Leung.

The blog article ends with a most relevant paragraph:

"The company has tried to solve its intellectual property conflicts by signing revenue-sharing deals to share profits from advertisements on its digital music search services with individual music labels. In many cases, this tactic has worked. Still, the most recent lawsuit filed by the International Federation of the Phonographic Industry on behalf of several music labels that haven’t signed deals with the search company is still awaiting a decision from Chinese courts."

It is clear that the new face at Baidu will get a lot of work in regard to Baidu's intellectual property conflicts.

Read Ms Chao's article here.

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Confucius Institute Has Already Apologised And Removed China Expat Copyrighted Content From Its Site

The Confucius Institute online has already removed the copyrighted content of China Expat that was published unauthorisedly on its site. They want to talk with China Expat in the future to see whether they can start a partnership.

IP Dragon congratulates the two parties. End good, all good.

Read the Confucius Institute online's apology at the site of China Expat here.

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Netfilm.cn Is Making a Clean Sweep in Guangzhou Netcafes

China Tech News reports about Netfilm.cn, a big copyright holder who filed a lawsuit against 379 netcafes in Guangzhou for alleged infringing of copyrights by downloading online videos.

Netfilm.cn is taking online copyright infringement pretty serious and their approach is quite ambitious:

"[They] sent a team of 26 lawyers and notaries to investigate the films shown in netcafes in Guangzhou and they found out that up to 40% of more than 500 netcafes were using pirated films."

"The representative says that Guangzhou is their first stop on the rights protection train and they would try to complete the campaign by mid-July when they will start similar actions in other smaller southern Chinese cities."

Read the China Tech News article here.

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