The right of information network dissemination is an important civil rights of the copyright owner. In recent years, the Internet technology and the rapid development of related industries, new business models are emerging, refers to the copyright has become increasingly prominent, resulting in people's court relates to the right of information network dissemination copyright related civil disputes greatly increase.
   According to statistics, since 2002, the people's court cases of copyright has been ranked first in all cases of intellectual property, for example in 2011, local courts nationwide received IP civil cases 59882, of which 35185 cases of copyright, the number of involved about the right of information network dissemination copyright dispute cases in recent years, the total of 60% cases of copyright. In the trial of the case, how to define the infringement of right to network dissemination of information, especially how to define the legal liability of Internet service provider, become the face of intellectual property adjudication, the people's court challenge.
   The Supreme People's court after investigation, based on repeated comments, careful argumentation, issued "Regulations" on Several Issues concerning the trial of cases of disputes over infringement of the right of information network dissemination of civil law, the judicial interpretation of a total of sixteen, mainly to the people's court in the trial of information network transmission right dispute in the exercise of discretion principle, constitute an infringement of the right of information network dissemination behavior, network service providers of abetting tort and contributory infringement, information storage space and network service providers are more common in judicial practice should be aware that the criteria for Internet user is infringing information network transmission right, as well as the people's court for such cases under the jurisdiction of the rules.
   According to the judicial interpretation, permits network users, network service providers without the right people, through the information network to provide the right person to enjoy the right of information network dissemination of works, performances, audio and video products, except as otherwise provided by the laws, administrative regulations, will constitute an infringement of the right of information network dissemination behavior. The network service provider to provide network services, if instigate or assist users against the implementation of the right of communication through information network behavior, network service providers should bear joint and several liability for violations of the rights of Internet users the right to network dissemination of information behavior.
    In addition, the judicial interpretation also stipulates the jurisdiction of civil dispute case against the right to network dissemination of information, in the continuation of "the jurisdiction of such cases to explain the" Supreme People's Court on some issues of applicable law to disputes over computer network works in principle foundation, according to the situation of judicial practice, added provisions of tort and the place where the defendant has his domicile are difficult to determine or overseas, computer terminal equipment such as the plaintiff found infringing content location can be regarded as tort, the people's court for such case also has the jurisdiction, convenient people the right to initiate litigation in China, the effective protection of the legitimate rights and interests.

Attached:  

The Supreme People's Court on the trial of civil dispute case "infringement of the right of information network dissemination

Some issues of applicable law "provisions of the

        (the Supreme People's Court on November 26, 2012 the 1561st meeting of the judicial committee shall enter into force as of January 1, 2013)

 In order to correctly judge infringement civil case dispute over the right to network dissemination of information, in accordance with the law to protect the right of information network dissemination, promote the healthy development of the Internet industry, to safeguard the public interest, according to "people's Republic" "general principles of civil law of the people's Republic of China tort liability law of the people's Republic of China" "copyright law" "PRC Civil Procedure Law" and other relevant laws and regulations, combined with the actual trial, the enactment of this provision.

Article 1 the people's court against information network transmission right of civil disputes, in accordance with the law to exercise discretion, consideration shall be given to the interests of obligee, Internet service providers and the public.

Called information network second these Provisions, including computer, TV, telephone, mobile phone and other electronic equipment for the computer Internet, radio communication network, fixed network and mobile communications network, information network terminal, and open to the public on the local area network.

Third network users, network service providers without permission, through the information network to provide the right person to enjoy the right of information network dissemination of works, performances, audio and video products, except as otherwise provided by the laws, administrative regulations, the people's court shall determine its behavior constitute an infringement of the right of information network dissemination.

Through uploads to the web server, file sharing or sharing software, use the file, the works, performances, audio and video products in the information in the network, so that the public can be obtained in the special time and place to download, browsing or other means, the people's court shall be deemed as the implementation of the provisions of the preceding paragraph provides behavior.

Fourth has evidence to prove that the network service providers and others to work together to provide joint works, such as performance, audio and video products, constitute the common infringement behavior, the people's court shall order them to bear joint and several liability. The network service provider can prove its only provides automatic access, automatic transmission, information storage, search, link, file sharing technology, network service, claiming it does not constitute joint tort, the people's court shall support.

Fifth network service providers to provide substantial Webpage snapshot, thumbnails instead of other Internet service providers to provide relevant work to the public, the people's court shall identify the behavior.

The provisions of the preceding paragraph does not affect the normal use of the behavior of related works, and without unreasonable harm the lawful rights and interests of the copyright, the network service provider should not infringe the right of information network dissemination, the people's court shall support.

Sixth plaintiffs have preliminary evidence that the network service provider provides the related works, performances, audio and video products, but the network service provider that provides the only network service, and has no fault, the people's court shall not be deemed to constitute an infringement.

Seventh network service providers abets or helps users against the implementation of the right of information network dissemination behavior to provide network services, the people's court shall order them to bear tort liability.

The network service provider to speech, promote the technology support, reward points, induction, encourage users against the implementation of the right of information network dissemination behavior, the people's court shall determine its instigation torts.

The network service provider who knows or should know the infringement of the right of information network dissemination network users use the network service, not to remove, shielding, broken links and other necessary measures, or to provide technical support to help behavior, the people's court shall determine that the help infringement.

Eighth the people's court shall, according to the network service provider's fault, determine whether it undertakes the instigation, help tort liability. Network service providers for fault including Internet user is infringing the right of information network dissemination behavior knows or should know.

The network service provider is not on the network user is infringing the right of information network dissemination behavior active review, the people's court shall not accordingly finds its fault.

The network service provider that has taken reasonable technical measures, effective, is still difficult to find an Internet user is infringing the right of information network dissemination behavior, the people's court shall determine that it does not have the mistake.

Article ninth the people's court shall, according to the specific facts of Internet user is infringing the right of information network dissemination is obvious, considering the following factors, that the network service provider whether should know:

(a) the way nature, provide the service the network service provider based on the likelihood of infringement, should have the ability of management information;

(two) the dissemination of works, performances, audio and video products type, visibility and infringement information obvious;

(three) the network service provider is active on the works, performances, audio and video products were selected, edit, modify, and recommend;

(four) the network service provider whether to take reasonable measures of prevention of infringement;

(five) the network service provider is provided a convenient program receiving notice of infringement and promptly make a reasonable response to the notice of infringement;

(six) the network service provider is in the same network user's repeated violations take reasonable measures;

(seven) and other relevant factors.

Tenth Internet service providers to provide network services, on the hit TV works to set list, directory, index, descriptive paragraph, synopsis are recommended, and the public in the Webpage directly to download, browsing or other ways, the people's court may identify the knowledge network user personal information network transmission right.

Direct economic benefits eleventh network service providers from network users works, performances, in audio and video products, the people's court shall determine that it has a duty of care to the higher network user is infringing the right of information network dissemination behavior.

The network service provider specific works, performances, audio and video products advertising revenue, the presence of other specific connection or acquisition and dissemination of works, performances, audio and video products economic benefits, should be identified directly obtain economic benefits for the provisions of the preceding paragraph. The network service provider for providing network services for the general advertising fees, service charges, does not belong to the provisions of this paragraph.

Twelfth in any of the following circumstances, the people's court according to the specific situation of the case may be, that provide information storage space service network service providers should be aware that the Internet user is infringing the right of information network dissemination:

(a) will hit TV works in the first page or other main page to the network service provider clearly aware location;

(two) on the hit TV works theme, content of active selection, editing, sorting, recommend, or set up a special list for the;

(three) other apparent to the senses, performance related works, audio and video products for without permission, not take reasonable measures.

Notice the thirteenth network service providers receiving obligee to submit by letter, fax, e-mail, not to delete, shielding, disconnect the link and other necessary measures in a timely manner, the people's court shall determine that the infringement of the right to network dissemination of information that related behavior.

Article fourteenth the people's Court of Internet service providers to delete, shielding, broken links necessary measures are timely, shall submit the notification form according to the right people, the accurate degree of difficulty of notice, take measures, the nature of network services, the works, performances, audio and video products, well-known types factors such as the number of degrees, the comprehensive judgment.

Fifteenth infringement of information network transmission right civil case dispute shall be under the jurisdiction of the infringement or the people's court at the domicile of the defendant. Tort includes the alleged infringement of the web server, a computer terminal equipment is located. Infringement and the defendant has his domicile are difficult to determine or overseas, computer terminal equipment such as the plaintiff found infringing content location can be regarded as tort.

Sixteenth the date of promulgation of these Provisions, "interpretation of the Supreme People's Court on some issues of applicable law to disputes over computer network works" (2006) (Interpretation No. 11) shall be repealed simultaneously.

The implementation of these Provisions have not yet final after the infringement of the right of information network dissemination of civil disputes, these Provisions shall apply. The implementation of these provisions has been closed before the party applying retrial, or decide to retrial according to the procedure for trial supervision, the provisions do not apply.

                                                           Source: the Supreme People's Court of the people's Republic of China net