contents, screening and de-linking. Failing to take necessary actions after being informed, the internet service provider will be subject to joint and
several liabilities with the internet user with regard to the additional damages incurred. Where an internet service provider knows that an internet user is infringing upon other persons rights and interests through its internet service but
fails to take necessary actions, it is jointly and severally liable with the internet user.
Regulations on Intellectual Property
China has adopted legislation governing intellectual property rights, including patents, copyrights,
trademarks, and domain names.
Patent. The PRC Patent Law provides for patentable inventions, utility models
and designs, which must meet three conditions: novelty, inventiveness and practical applicability. The State Intellectual Property Office under the State Council is responsible for examining and approving patent applications. A patent is valid for a
term of twenty years in the case of an invention and a term of ten years in the case of utility models and designs.
Copyright. The PRC Copyright Law and its implementation rules extend copyright protection to products disseminated
over the internet and computer software. There is a voluntary registration system administered by the China Copyright Protection Center. Creators of protected works enjoy personal and property rights, including, among others, the right of
disseminating the works through information network.
Pursuant to the relevant PRC regulations, rules and interpretations,
ICP operators will be jointly liable with the infringer if they (i) participate in, assist in or abet infringing activities committed by any other person through the internet, (ii) are or should be aware of the infringing activities
committed by their website users through the internet, or (iii) fail to remove infringing content or take other action to eliminate infringing consequences after receiving a warning with evidence of such infringing activities from the copyright
holder. The court will determine whether an internet service provider should have known of their internet users infringing activities based on how obvious the infringing activities are by taking into consideration a number of factors,
including (i) the information management capabilities that the provider should have based on the possibility that the services provided by it may trigger infringing acts, (ii) the degree of obviousness of the infringing content, (iii)
whether it has taken the initiative to select, edit, modify or recommend the contents involved, (iv) whether it has taken positive and reasonable measures against infringing acts, and (v) whether it has set up convenient programs to
receive notices of infringement and made timely and reasonable responses to the notices. Where an internet service provider has directly obtained economic benefits from any contents made available by an internet user, it shall have a higher duty of
care with respect to the internet users act of infringement of others copyrights. Advertisements placed for or other benefits particularly connected with specific contents may be deemed as direct economic benefits from such contents, but
general advertising fees or service fees charged by an internet service provider for its internet services will not be included. In addition, where an ICP operator is clearly aware of the infringement of certain content against anothers
copyright through the internet, or fails to take measures to remove relevant contents upon receipt of the copyright holders notice, and as a result, it damages the public interest, the ICP operator could be ordered to stop the tortious act and
be subject to other administrative penalties such as confiscation of illegal income and fines. An ICP operator is also required to retain all infringement notices for a minimum of six months and to record the content, display time and IP addresses
or the domain names related to the infringement for a minimum of 60 days.
An internet service provider may be
exempted from liabilities for providing links to infringing or illegal content or providing other internet services which are used by its users to infringe others copyright, if it does not know and does not have constructive knowledge that
such content is infringing upon other parties rights or is illegal. However, if the legitimate owner of the content notifies the internet service provider and requests removal of the links to the infringing content, the internet service
provider would be deemed to have constructive knowledge upon receipt of such notification, but would be exempted from liabilities if it removes or disconnects