NCAC has published a public comment draft of revised Copyight Administrative Punishment Implementing Measures “著作权行政处罚实施办法（修订征求意见稿）”, with comments due Sept 30, 2015. The new draft addresses certain important emerging issues for administrative enforcement, including: punishment of network service providers, harmonizing administrative enforcement with recent judicial interpretations and enforcement guidance, including lowering thresholds for what constitutes a “serious circumstance” and providing for seizures of servers used for providing infringing network service, and clarifying time lines and procedures for enforcement. I speculate that the timing of this draft may also be linked to NCA’s needs to ramp up enforcement of copyright protection in light of delays in the copyright law revisions. As with the patent law amendments, NCA may wish to be making the case that it needs improved enforcement in the copyright law, by first taking the steps within its control to improve administrative enforcement.
Tag Archives: making available right
Developments in Online Civil Copyright Enforcement in China: NCAC’s Analysis
The National Copyright Administration of China (NCAC), in its 2014 Annual Report Online Copyright Protection in China (2014年中国网络版权保护年度报告), analyzed published opinions on online civil copyright cases involving the “right of transmission to the public” (making available right) drawing on three public databases (the Supreme People’s Court’s “中国知识产权裁判文书网” 、 “中国裁判文书网” ，and Peking University’s “法宝数据”).
There were 1650 reported civil opinions on online infringement in 2014, an increase of 18.8 percent from last year. Audiovisual cases occupied first place, at 44.5 percent of these opinions. Literary works constituted 390 cases, or 23.6 percent. This was an increase of six times over last year. Graphical works were 363 cases, a 3.3 times increase. Video games totaled 56 cases and music was last of these major categories with 20 cases, or about 1 percent, a decrease from last year of 80 percent. In total these categories constituted 98 percent of reported cases.
The report identifies that were 86 cases involving 11 of the 20 websites that were subject to supervision by China’s copyright administrative authority (NCAC), and were 5.2% of the total cases. These cases were a declining percentage of online infringement cases compared to past year. It appears that NCA is using this data to show the effectiveness of its administrative mechanisms.
The decline in music cases, in my estimation, likely reflects the great difficulty the music industry faces. Music is a priority area for NCA this year. Improvements in administrative IP protection planned at the beginning of 2015, including a recently launched campaign, will also hopefully reduce the level of infringement by key internet companies and/or support more effective civil enforcement in this sector.
Plaintiffs in online copyright cases were mostly enterprises, and defendants were mostly internet companies. Individuals were a small number of the plaintiffs (about 6.4 percent), which was about the same as last year. Online media companies were principal defendants (87%). The remaining 13 percent consisted of traditional media companies, including traditional publishers, newspapers, motion picture studios, and television stations.
Civil online cases were principally heard in Guangdong, Beijing and Zhejiang with about 70 percent of the cases. Zhejiang jumped from fifth place last year to third place. Fujian also showed a significant increase. A large share of the audiovisual infringement cases in Guangdong involved Kuaibo (www.qvod.com). The regional distribution of the cases also shows that there was a drop in audiovisual cases in Beijing, but an increase in other areas such as written works. Most of the plaintiffs in Beijing were well known companies in such fields as motion pictures, cultural product distribution, and internet technologies, which in NCAC’s view could suggest a maturing of the Beijing environment towards protecting a greater variety of content owners.
The increase in cases in Zhejiang in online cases is due to the rapid increase in online industries in that province, which also has consequences for trademark counterfeiting. As I recently reported, online counterfeiting has also become a priority for China Customs in China, with Zhejiang also figuring prominently in seizures of exports at such ports as Hangzhou and Ningbo.
The report also notes that there were 30 online criminal copyright cases as well, and that fines and punishment had increased, with one fourth of the cases involving fines over 500,000 RMB.
Note that I tried to compare this data with the data that is available on www.ciela.cn. Unfortunately the data sets do not match well. CIELA analyzes data by cities and provides more granular detail on proceedings and outcomes (length of time, damages, “win” rates, etc.). Moreover, CIELA does not breakout on-line copyright cases. I was thus unable to reliably further validate NCA’s observations in this report.
The NCAC report was released on April 22, 2015. However, with only 219 hits since it was placed on line as of today, it remains a “sleeper” of a report, notwithstanding the dramatic growth in online copyright issues in China.
