China Law Blogs
Posts from blogs about Law in China
- Foreign Investment in China: Beware of Local Governments Bearing Gifts
Recent news reports suggest that Foxconn is having trouble securing investment benefits promised them by the Zhengzhou government. The rumor is that Foxconn was lured to Zhengzhou with promises of over 5 billion RMB in tax benefits and related incentives. These incentives were granted in direct opposition to central government policy. Beijing found out and laid… Continue Reading
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- The China Bank Switch Scam: Still Very Much Alive.
Long ago I formulated a self-imposed rule. Whenever I or one of my firm’s other China lawyers receive three emails on the same thing in a week, I write about it. Haven’t been so forced for a while, but it happened this week and the topic is that good old stand-by, the China Bank Switch Scam…. Continue Reading
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- Made In China?
Before you read this post, take a moment to look at the back of your computer monitor or handheld device. Do you see a tag that states “Made in China?” My computer monitor does; my iPhone states it a little differently as Assembled in China. For products imported into and sold in the United… Continue Reading
- Terrific Chinese law fellowship at the Leitner Center, Fordham Law School
- Human Rights Watch seeks China researcher
- Chinese lawyers file freedom-of-information request for legal basis for ban on teaching of “Western values”
- IP Dragon has found a new den: IPDRAGON.ORG
- Constructed Knowledge Works Like a Red Flag To An Internet Intermediary
Shades of Red by Skram1 see Colourlovers
The real question: “What shade of red will attract liability?“
After publishing a draft of the copyright law, the National Copyright Administration comes now with a A Brief Explanation concerning the Copyright Law of the People’s Republic of China (Revision Draft)translated by China Copyright and Media. It makes the copyright more complete but most things were already known.
This time let us look at the safe harbor provisions for network service providers, which were already promulgated in 2006 in the Regulation on the Protection of the Right to Network Dissemination of Information, and will probably be incorporated in the copyright law. The provisions exempt them from civil secondary liability of copyright infringements and related rights infringements. The Chinese safe harbor is broader than Title 17 U.S.C. section 512, Digital Millennium Copyright Act (DMCA) because it also includes the related rights performances and audio-visual recordings, and more narrower than Chapter 2, section 4, articles 12-15 Electronic Commerce Directive of the EU, because the latter applies horizontally, which means to all infringing online material.
Since primary and secondary liability is such a colourful subject, this author has used primary and secondary colours to show similarities of concept between the different jurisdictions.
- transitory digital network communications
- system caching
- information residing on systems or networks at direction of users
- information location tools
- non-profit educational institutions
E-Commerce Directive (EU)
- mere conduit
Network Dissemination Information Regulation (China)
- automatic access
- automatic storage
- information storage space to users, or services to the public
- searching or linking services
- educational institutions
Chinese networks that host can be exempted from civil liability if they have no actual nor constructed knowledge. In the Network Dissemination Information Regulation there is article 22 (1): “Having not known and having no justified reason to know that the works, performances, or audio-visual recordings provided by the service object have infringed upon an other’s right;”In the DMCA the constructed knowledge (Red flag) provision is § 512(c)(1)(A)(ii): limiting liability where, “in the absence of such actual knowledge, [the service provider] is not aware of facts or circumstances from which infringing activity is apparent”.
Almost the same wording can be found in the E-Commerce Directive the constructed knowledge provision can be found in article 14 (a): “the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent“.In Viacom v. YouTube, that was decided April 5, 2012 by the Court of Appeals for the Second Circuit, it was formulated eloquently: “The difference between actual and red flag knowledge is thus not between specific and generalized knowledge, but instead between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person.“
UPDATE: April 8, 2012, translation of Copyright Law of the People’s Republic of China has been uploaded on China Copyright and Media here, and includes:
Article 69: “When network service providers provide storage, search, linking and other purely technological network services to network users, they do not bear a duty to examine for information concerning copyright or related rights.
Where network users utilize network services to conduct activities infringing copyright or related rights, the infringed person may notify the network service provider in writing, and require it to adopt necessary measures such as deletion, shielding, breaking links, etc. Where the network service provider adopts the necessary measures timely after receipt of the notification, it does not bear responsibility for compensation; where it does not timely adopt the necessary measures, it bears joint responsibility with the said network user.
Where network service providers know or should know that network users use their network services to infringe copyright, and do not adopt necessary measures, they bear joint liability with the said network users.“
Joint liability suggests the same gravitas as the liability of a primary infringer. This might be different from the U.S. and EU secondary liability.
- Chinese Movie Posters Give You “Double Vision” Without The AlcoholClone and Original
The silver screen is known to bring out the imagination of people. However, China’s film industry has not given birth to a poster child of creativity, eyeing laboriously to any movie that has some measure of success, Chinese or foreign, and subsequently clone the film poster designs.
In November of 2011 I had my doubts about the independent creation of a Taiwanese movie poster, see here. Now Jing Gao of Ministry of Tofu has a series of 41 pairs of copycats and their originals, see here.
- Tianenmen Square Anniversary - Are things changing?http://news.bbc.co.uk/onthisday/hi/dates/stories/june/4/newsid_2496000/2496277.stm While never expecting to be able to see anything about Tianenmen Square on the internet here in China, we still try every now and again to see what we can pull up with a simple internet search. Also, the…
- China earthquake medical supplies list — EnglishDownload earthquake_needs_sichuan_china_21_may_2008.doc This is a Word document of the present needs list of medical supplies. This translation came from our office because we have been asked for an English language version. Funds might be sent in via the Red Cross,…
- Chinese Visa BacklogWe have been getting 20-30 phone calls per day about getting a Chinese visa. Each caller seems to have been told some different story about what can and can not be done. So, I’m writing to try and clarify things…