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.

China’s Rising Presence in the IPO Top 300

Intellectual Property Owners (IPO) recently released its top 300 organizations granted US patents in 2014.  Many Chinese companies made the top 300.  TSMC was the top amongst Mainland or Taiwan companies, ranking number 26, with 1,446 US patents. Huawei was 48 with 872 patents; ZTE was 63 at 705.  ZTE also showed a 58.2 increase over last year.  Hon Hai (Foxconn) was number 68 with a drop of 33.8 percent in patent filings to 665, and a drop in rank from number 35 in 2013.   Hong Fu Jin was number 85 ( a decrease of 47.9 percent), and Shenzhen China Star Optoelectronics showed the highest increase of any Chinese organization amongst the top 300, with a total of 431 filings.  This 318.4%  increased earned it the number 93 spot.

Patent grants increased for both Chinese and Taiwanese cell phone companies.  Amongst Taiwanese cell phone companies, HTC also made the top 300.  It received 210 patent grants, with an increase of 44.3% earning it the 157th place.

Tsinghua University retained its rank as the top Chinese university patent filer, ranking number 153 with 230 patents in 2014.  Amongst well-known universities, Tsinghua retained the enviable position of being behind the University of California system (number 91) and MIT (number 135) and ahead of Stanford (181), and Caltech (196).

Chinese “Top 300” changing ranks may be contrasted with overall patent grant trends at USPTO.  Patent grants from all countries, increased at USPTO last year, from 301,962 in 2013 to 326,039.  This was an increase of  about 8 percent.  Chinese patent grants increased from 6597 to 7921, an increase of  about 20 percent.

China is receiving more patents in both relative and absolute terms.   There were however many outliers in China’s overall growth.  While many Chinese organizations received patents in numbers that were well in excess of the overall growth rate at USPTO, as noted above several organizations experienced negative growth (Foxconn, Hong Fu Jin).

Of course, increases in patent grants do not necessarily translate into patent quality or commercial value.   Other patent data, including data on allowance rates, pendency rates and technology rate can help in further understanding overall patent data.  Data on licensing flows can also assist in understanding China’s role as technology importer and an emerging technology exporter.

IP Developments in Beijing

The newsletter of the Beijing Intellectual Property Institute (www.bipi.org) reports the following related developments in Beijing in its January 2014 edition:

First, due to the rapid increase in IP cases in the Beijing Number 1 Intermediate Court, particularly IP cases involving patent and trademark validity, the Beijing Intermediate Court will split its Intellectual Property Tribunal in two.  The number one IP Tribunal will primarily hear trademarks and unfair competition cases, while the slightly smaller number two IP tribunal will primarily hear patent and copyright cases.

Second, it is also reported that the Beijing courts have been hearing more IP cases, and that their share of the national docket is about 10%.  First instance cases increased from 4,748 cases in 2008 to 11,305 in 2012, and increase of nearly 150%.  Copyright cases represented about half the total.  

It is my hope that this division of the courts will increase expertise and efficiency, as this court likely hears the most foreign IP cases of any court in China.  The reason: foreigners are a small percentage of the total civil IP docket, but a large share of the administrative docket involving appeals from the patent and trademark offices.  

Although Beijing represents “only” 10% of China’s IP docket, it has an outsized influence on foreigners, with the Beijing Intermediate Court likely hearing well over 50% of foreign-related IP cases. 

 Here is a chart of the Beijing IP court system, from the BIPI newsletter:

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