Monday, January 04, 2010

" Brick by Brick" Tort Law Supplementary to IPR Law in Case of IPR Infringements

The Tort Liability Law had a ... well torturous history. In 1997 the decision was made that China needed a Tort Liability Law. In the words of Professor George Conk of Fordham University School of Law "it is a brick by brick effort which does not proceed with the urgency of specific operational laws." On December 26, Tort Liability Law was passed. So can you make use of it when your intellectual property right in China has been infringed? Yes, but you first need to make use of intellectual property law. You could say that intellectual property law is a special law and that it derogates the more general tort liability law (lex specialis derogat legi generali).

Wang Shengming, deputy director of law committee of the National People's Congress puts it like this: "the tort liability law is a supplement and consummation to related intellectual property laws, and once infringements to intellectual property rights happened, the related laws on intellectual property are preferential, and then tort liability law would be considered."

Professor Benjamin Liebman of Columbia Law School is an expert on tort law and shared his knowledge about US tort laws, including defamation on the internet, with China.

"Internet service providers in the U.S. are immune from liability for content they do not create, a practice Liebman said the Chinese found “very surprising” and are unlikely to emulate. China already offers broad protections for plaintiffs in defamation cases." Read more here.

Article 36 Tort Liability Law could be relevant: any web user or service provider who infringes others' civil rights and benefits shall undertake the tort liability, and meanwhile, the law specifies the forms of liability for both: once infringements by web users happened, the infringed party has the right to inform the web service provider to delete, shield, cut the links and other necessary measures; web service provider who hasn't take necessary measures after the information shall bear joint liability with the web user; web service provider who find users use the web service to infringe others' civil rights and benefits but hasn't taken any measures shall bear joint liability with the user

Professor Conk wrote about the draft of December 17, 2002 here . At the December 17, 2002 draft you could find tort liability for ISPs in article 63. Then the provision moved to article 34. Professor Conk wrote together with professor Wang Zhu of Sichuan University School of Law 'Tort Liability of the People's Republic of China (2nd official discussion draft December 28, 2008', read here.

According to Intellectual Property Protection the ISP liability provision moved to article 36, read more here.

Steve Dickinson of China Law Blog wrote about it here that ISPs should not be criticised that they will remove the liability in China for "removing content from their sites that anyone suggests may be defamatory or violate some other party's intellectual property rights." Because it is the law:
Article 36 Tort Liability Law: "If an ISP knows its user has used the ISP's network to infringe on the civil rights of another person and does not take appropriate action, then the ISP shall have joint liability together with the user. In a case where a internet user makes use of the network to engage in infringing activity, the infringed party has the right to give notice to the ISP to take necessary measures such as deletion, blocking or termination of service. After receiving such notice, if the ISP does not take act immediately to take such remedial action, then the ISP shall have joint liability with the the user for all increase in damage."

However, whether the new Tort Liability Law will be "a significant step to provide a comprehensive protection to people's physical and mental well-being and the security of an individual's property" as the Guang Ming website wrote remains to be seen. Read more here.

Read more about ISP liability in China here.

Photo/text: Danny Friedmann

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