By Dan Harris
The China Music Business Blog (who knew?) just did a post by University of Oregon Law School Professor Eric Priest. Priest’s bio notes that he previously “worked in the Chinese music industry as a consultant, entrepreneur, and producer.”
Priest’s post (paper) is entitled, Making Amends: China Music Copyright Law Primer, and it is broken out into the following sections:
- The Development of PRC Copyright Law
- Copyright Law Since China’s Entry into the WTO
- Copyright Enforcement—Administrative and Judicial Enforcement Routes
- Internet Enforcement
It really does provide an excellent overview on China copyright laws, especially with respect to its handling of music copyrights. I found myself nodding along as I read it, except on the following two points.
The article discusses how China “has a notice-and-takedown regime akin to § 512(c) of the Digital Millennium Copyright Act in the U.S.” On that I agree. The article goes on to say that “under the Chinese regulation, if a copyright owner notifies a website of the presence of an infringing work, the website is not contributorily liable so long as it: (1) provides notice to the subscriber using its storage space, (2) does not alter the work in question, (3) has no knowledge of or reasonable grounds for knowing of the infringing act, (4) does not seek to financially benefit directly from the works, and (5) expeditiously removes the content after receiving the 5) expeditiously removes the content after receiving the notice.” On that, I also agree. But Priest then says that “for music copyright owners in particular, this procedure has provided little relief.” On this, I agree a less now than I would have two or three years ago.
I say this because in the last year or so, our China lawyers have achieved far greater success in getting China internet sites to take down content that violates IP rights, even copyrights and even music. In the past, websites were (and, admittedly, many still are) unwilling to take down anything unless you could prove that the offending material violated a trademark, patent or copyright registered in China. This position makes some sense with respect to trademarks and patents, because generally a trademark or a patent in one country does not extend to another. But as a signatory to various conventions, China is supposed to provide at least some copyright protection to foreign works, including those from the United States. Chinese websites were in the past pretty much oblivious to this and they would seldom take down foreign content as violative of China’s copyright laws. That is slowly changing.
The other matter on which I take small issue is this sentence, that actually cites to our blog for its support: “As a practical matter, however, injunctive orders have been difficult to enforce in China.” Again, I agree on this less now than I would have even a year ago. When we wrote the blog post, Protecting Your IP In China With An Injunction. Yeah, That’s The Ticket, back in 2012, securing a preliminary injunction for an IP violation was pretty much unheard of. But since then, more particularly starting in late 2013, quite a bit has changed on that front.
First, China’s Supreme Court issued a statement effectively urging China’s courts to be more liberal in granting preliminary. Second, in apparent response to the Supreme Court’s exhortation, there have been a few patent infringement cases in which preliminary injunctions were granted on behalf of foreign plaintiffs and there has even been a case in which a foreign plaintiff (Novartis) was granted a preliminary injunction in a trade secret case against one of its former employees.