Tue, January 7, 2014
By Danny Friedmann
Baidu Inc. and QVOD were each fined 250,000 RMB on December 27, 2013 for copyright infringement by the National Copyright Administration of China (NCA) and had to enjoin their infringing activities. The NCA started the investigation on November 19, 2013 after receiving complaints from Youku Tudou (since the merger in 2012 China’s biggest video website operator), LeTV, Sohu, Tencent, MPA, CODA, Wanda Films and Enlight Media; that Baidu Video, Baidu TV Stick, Baidu Yingyin media player and Baidu Video mobile app had infringed their copyrights. The complaints were also directed against QVOD, another software video player.
The Global Times reported that the 250,000 RMB was the highest fine the NCA could give to Baidu and QVOD. However, this would be only correct if the illegal earnings were no more than 50,000 RMB. If the illegal revenues exceeded 50,000 RMB the maximum is five times the amount of the illegal revenues, and they can also confiscate the equipment such as computers that is mainly used to provide the network service. See Articles 18 and 19 Regulation on the Protection of the Right to Network Dissemination of Information (updated February 25, 2013 by Bridge IP Law).
Wang Fan wrote for the China Daily here about a campaign to deter illegal streaming of unauthorised videos in June, when 20 video website operators had to submit documents to the NCA to demonstrate that they had authorisation to stream 2,374 different films and television programmes.
250,000 RMB? What happened to the claim of 300 million RMB?
The administrative route is a relatively time and costs efficient mode of enforcement in China, but it lacks the remedy of compensation of damages. Therefore it was to be expected that on November 13, 2013, a consortium of video companies announced at a press conference at the Beijing Shangri-La that they were going to file a lawsuit against Baidu and claim 300 million RMB in damages. Paul Bischoff of Tech in Asia reported that Youku Tudou (since the merger in 2012 China’s biggest videosite), LeTV, Sohu, Tencent, CODA, Wanda Films and Enlight Media and other video companies were unified in the “China Online Video Anti-Piracy Alliance”.
According to Eric de Fonenay of MusicDish, Capital Copyright Industry Alliance Capital Protection Division, the China Radio and Television Association of the Television Production Committee, and many Chinese production companies gave acte de présence, see here
. The Motion Picture Association of America (MPAA), Sony Pictures Entertainment, Warner Brothers, Disney and Paramount were present too, see here
, although, according to Brid-Aine Parnell of The Register, the MPAA did not join the copyright infringement claim, see here
. Ms Parnell wrote also that the alliance had tried to negotiate with Baidu, to no avail, because according to her Baidu would not agree to rules on violating copyright unless QVOD did the same.
Baidu argued that it took already four steps towards mitigating piracy: Research and development into an automatic piracy filtration system; Open complaint channels where a 24-hour team reviews reports of pirated content and consequently removes it; recommending high quality genuine content to steer users away from pirated material and Baidu’s web search will stop linking to pirated video sites.
Copyright infringement? Taking unfair advantage?
According to Global Times’ Li Qiaoyi Baidu and QVOD were “identified as the top two violators of copyrighted video content for 2013” by Yu Cike, head of the department of copyright management, of the NCA.
The claim against Baidu and QVOD was that they deeplinked to copyrighted videos without authorisation: in other words that copyrighted content of third parties were directly accessible via Baidu or QVOD video players. This way, the rights holders were deprived of their right to communicate their works, performances or audio-visual recordings to the public (conform Article 8 WIPO Copyright Treaty to which China is a member since 2007, compare the language used in Article 26 Regulation), and internet users never had to visit the third parties’ sites, and devoid of advertisements on those sites. At the same time Baidu and QVOD were taking unfair advantage of the content, storage and bandwidth of the rights holders of the videos.
One can argue that the CJEU rule that “transmission and retransmission of works (even where those [users] streaming the content were legally permitted to view the original broadcast) constitutes a “communication to the public”, can be applied in this case as well. Read Annsley Merelle Ward’s analysis at IP Kat.
China has safe harbour provisions for online (network) service providers against secondary liability in case of copyright liability, comparable to the DMCA in the US (the E-Commerce Directive in the EU works horizontally, and is applicable to trademark infringements too, and is not just applicable to copyright infringement, anti-circumvention and technological adjuncts). Articles 18 (1) and 19(2) Regulation state that the network service provider is liable for copyright infringement if it is providing works, performances, or audio-visual recordings to the public through the information network without permission; and is obtaining economic benefits. The safe harbour provisions are not providing immunity against liability in case of actual or constructed knowledge, see Articles 22 (3-4), 23 Regulation.
Another claim was that Baidu provided access to video sites that host pirated content and do not have official licensing to operate in China. It was also stated that Baidu was profiting from advertising revenue sharing agreements with such sites.
Professor Eric Priest of the University of Oregon School of Law sets out in ‘The Future of Music and Film Piracy in China‘, that the conflicts about piracy of videos (at least for the part that are permitted by the Chinese authorities) could be prevented if China would apply an Alternative Compensation System (ACS) (where for example a percentage of the costs of an internet subscription via a fixed line of mobile will be redistributed to the rights holders in the relation to the usage of their works). The future Professor Priest outlined in his 2006 publication in Berkeley Technology Law Journal, is still worth considering today. The Institute for Information Law (IViR) in Amsterdam is doing a comprehensive study between 2012 and 2015 on ACS under the guidance of principal investigator Professor P. Bernt Hugenholtz, see here.
Mon, June 18, 2012
Here is IP Dragon Roar’s second podcast about “Spirit, Software, World-of-War Craft, Compulsory Licensing”. First Jamon Yerger and Matthew Kowalak discuss the following blog posts: Stir up people to innovate by slogan or by a change of culture Supreme People’s Court Took AMSC v. Sinovel Wind Group Case On Software Copyright Infringement Trend […]
Wed, June 6, 2012
In November, 2011, IP Dragon posed the question: Is American Superconductor (AMSC) the 21st century version of Don Quixote?, when it sued Sinovel Wind Group of Beijing for violation of trade secrets and software copyright infringement and demanded damages of 1.2 billion U.S. dollar, read here. AMSC has filed four law suits against Sinovel […]
Sat, May 5, 2012
On May 3, 2012, the China Youth Daily did a survey under 17,576 respondents about their conduct and perception in regard to copyright protection. Results survey: 92.7 percent of respondents admitted they had bought or used pirated goods themselves; 86 percent of respondents hope the government steps up copyright protection; 65.9 percent […]
Sun, November 13, 2011
Don Quixote: “Do you see over yonder, friend Sancho, thirty or forty hulking giants?” Sancho Panza: “What giants?” In Don Quixote, Miguel de Cervantes’ masterpiece (1605 part I, 1615 part II) Cervantes wrote that Quixote was tilting at windmills, because he thought they were ferocious giants. […]
Tue, October 11, 2011
Jonathan Mak, design student at Hong Kong Polytechnic University School of Design said that he did not rip-off the idea for the Apple tribute in which you can distinguish the silhouette of the late Apple co-founder Steve Jobs. Invisible Gold in Asia Facebook Page (set up by author of the book with the same name Professor David […]
Fri, September 30, 2011
What to do when the trademarks and copyrights of your luxury products are infringed by Chinese companies that sell these products online to, for example, U.S. consumers. You can go after the source: using Chinese customs, the administrative, criminal or litigation routes. Another innovative way is to go also after the U.S. company that leases […]
Mon, September 5, 2011
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, […]
Mon, August 15, 2011
With 90.1 million registered users, Tudou 土豆, which means potato, is no small potato. The site for investors ‘Seeking Alpha’ gives an analysis of the Chinese online video site Tudou.com 土豆网 (for which they use the symbol TUDO) in relation to its competitors, before it is going for an Initial Public Offering (IPO) at NASDAQ Stock Exchange […]
Fri, August 5, 2011
Geng Wenxin of Global Times, a state owned news organisation, reports about CNTV (China Network Television) part of CCTV (China Central Television) suing two provincial branches of China Telecom for using its copyrighted content without permission. China Telecom at the Guangzhou Intermediate People’s Court (Guangdong province) China Telecom at the Nanjing Intermediate People’s Court (Jiangsu […]
Thu, July 28, 2011
Warning: This article contains material which may offend and may not be distributed, circulated, sold, hired, given, lent, shown, played or projected to a person under the age of 18 years. Let me first refresh your memory about IP relevant rabbits and then tell you about my encounter with the undecent two Miffy bunnies in […]
Mon, April 18, 2011
Unauthorised Use of Disney’s copyright Smoothite versus Samsonite
Mon, October 11, 2010
China National News reported the most surreal news IP Dragon has read for a long time. The Taiwanese Intellectual Property Office (TIPO) organised a design competition. The purpose was to make the public respect the intellectual property of other people. The Taiwanese student Wu Chih-Wei won the contest with ‘Work – shattered’ a design of […]
Fri, June 18, 2010
In 2007 the Bureau of the Shanghai World Expo 2010 Coordination promulgated a special regulatation (See here: No. 11) concerning intellectual property rights. In short all participants to the World Expo were warned that they should comply to China’s IPR laws, regulations and rules far in advance. “The General Administration of Press and Publication and […]
Thu, April 22, 2010
Google has launched a Google Maps tool, called Google Government Requests to show statistics of all government requests it is getting to supply data or to remove content and the percentage it is fully or partially complying with these requests. Because, according to Google, “Chinese officials consider censorship demands as state secrets”, Google “is not […]
Wed, December 16, 2009
The writer of the banned book Candy, and, Panda Sex (according to China Daily more mature) and Acid Love, sues Google.Shanghai’s “Best Bad Girl” Author Mian Mian (棉棉), finds support from the China Written Works Copyright Society. Chen Jia en Xie Yu of China Daily report: “Mian said Google scanned her entire novel, titled Acid […]
Thu, August 20, 2009
See the verdict of the Suzhou Huqiu District People’s Court’s in the copyright infringement case against tomatolei.com at the BSA site here.
Mon, July 20, 2009
Rogier Creemers of the University of Maastricht, Faculty of Law, has written an interesting article that will be published in the forthcoming number of European Intellectual Property Review: ‘The Effects of WTO Case DS362 on Audiovisual Media Piracy in China’. “The outcome of the recent WTO case China – Intellectual Property Rights, mainly concerned with […]
Sat, May 23, 2009
May 16-17, 2009, the International Herald Tribune had the following quote from the sci-fi author and screenwriter Harlan Ellison: “If you put your hand in my pocket, you’ll drag back six inches of bloody stump.”
Mon, October 6, 2008
According to a press release by Karri Ho from the International Federation Against Copyright Theft – Greater China (IFACT-GC), from September 29 to October 1, IFACT-GC representing the Motion Picture Association (MPA) and the CJ Mark Committee (CJ Mark) in Hong Kong, which represents Japanese rights owners, joined forces with over 120 officers from the […]
Wed, July 30, 2008
In April the People’s Court in the Chancheng district of Guangdong Province’s Foshan city ordered Haoledi Entertainment Company, the karaoke bar management firm, to pay damanges of 30,000 yuan (4,286 U.S. dollars) by Beijing-based New Run Entertainment Company, a performance management and audio-visual production firm. Read the Xinhua article via Sina about this reportedly first […]
Tue, January 1, 2008
Although both Baidu.com and Yahoo China basically provided deep links to pirated mp3’s, Baidu won in court, while Yahoo China lost. What are the differences? 7 (minus EMI) IFPI members versus Baidu.com Wang Hongjiang of Xinhua reports about a group of record companies who lost again a lawsuit against Baidu.com (a Chinese search engine and […]
Tue, November 27, 2007
Aaron Schwabach wrote an well written and interesting essay called ‘Intellectual Property Piracy: Perception and Reality in China, the United States, and Elsewhere’. Find the pdf here. Mr Schwabach starts with the quote: “There is probably more misinformation about China than about any other country in the world”. That is hard to proof. But it […]
Thu, September 13, 2007
A certain msmakara witnessed, recorded it and uploaded a video on YouTube of Hangzhou police who bust an alleged pirated DVD vendor in June 9, 2007. See here. msmakara wrote as an introduction to the video:“As I was walking through the market, I heard someone yell out something very loudly. After this, all of the […]
Tue, July 17, 2007
Mr John Neff of the Autoblog is ranting against China’s car advertisments that use cars transforming into robots and vice versa. His article’s title is: “Chinese automakers copy everything else, why not the Transformers”, read more here. One should distinguish the Transformers toys and cartoons of Hasbro and the movie the Transformers made by Michael […]
Fri, July 13, 2007
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 […]
Tue, July 10, 2007
Josh Gartner of China Expat asks himself the following questions: Why is the Confucius Institute Online Stealing Content? Referring to the content this institute unauthorisedly copied from China Expat, well documented on the site of China Expat. The Confucius Institute, set up by the Chinese state to promote a greater understanding of Chinese culture. So […]
Mon, July 2, 2007
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 […]
Wed, April 25, 2007
Remember the story about the allegations of copyright infringements (mp3 and ringtones) against Yahoo! China by the International Federation of the Phonographic Industry (IFPI), in March, 2006? Read here. The case was heard by the Beijing No.2 Intermediate People’s Court on 10th April 2007. The judgement was delivered on 24th April 2007. IFPI filed 11 […]
Wed, March 7, 2007
Li Xinran of the Shanghai Daily reports about Alibaba, operator of Yahoo China (in 2005 Alibaba bought Yahoo! China, then Yahoo! bought 40 percent of Alibaba) , who has been sued by eleven music companies, because Yahoo! China allegedly provided lyrics, mobile phone ring tones based on the songs and enticed users to download or […]
Netanel Jacobsson is a Swede living in Israel running Maxthon, a company that developes a browser in China (which reached 62 million dollars in one and a half year without marketing). Jacobsson’s last two blogs are about the Piper Jaffray’s Fourth Annual China Growth Conference in Beijing. In one he points out the way Chinese […]
Tue, February 13, 2007
Dafen, a village near Shenzhen is famous for its art industry and infamous for its copyright infringements. Article 21 Copyright Law states that the term of copyright protection in respect of a work of a citizen shall be the lifetime of the author and fifty years after his death, and expires on 31 December of […]
Sat, February 10, 2007
This year the Guangzhou based company He Shan Jia Hui Vacuum Flask & Vessel Co., Ltd. has won the mock prize of the golden nosed dwarf: Plagiarus. I would almost say congrats. Jug „Sophie“Original: alfi GmbH, Wertheim, GermanyPlagiarism: He Shan Jia Hui Vacuum Flask & Vessel Co., Ltd., Guangzhou, P.R. China I am not sure […]
Tue, November 21, 2006
Pfizer sued Guangzhou Welman for alleged copyright infringement of Viagra reports Forbes. I wonder why Pfizer’s allegations focused on copyright infringement instead of patent infringement, or both. Or is copyright used mistakingly as the prototype of an intellectual property? Read more here In 2001 Pfizer obtained a Chinese patent license for ViagraJuly 2004 SIPO’s Patent […]
Mon, November 20, 2006
In September seven Hong Kong music companies brought against Baidu, the largest search engine of China, a copyright infringement lawsuit. Beijing No.1 Intermediate People’s Court ruled that the accusations did not have adequate legal support. The seven companies were:Universal Music Hong Kong Limited;Go East Entertainment;Warner Music Hong Kong Limited;Sony BMG Music Entertainment (Hong Kong) Limited;EMI […]
Tue, November 7, 2006
Howard and Thomas Tsang (don’t know if they are family) of Wilkinson and Grist wrote an article for Managing Intellecutal Property about a copyright infringement case concerning web design. The plaintiff Eating.cn, yes a site about food, had duly registered its layout and design at the Chongqing Copyright Bureau. Since China is a signatory of […]