(FF No. 50)
All provincial, autonomous region and municipal Higher People’s Courts, the Xinjiang Uyghur Autonomous Region Higher People’s Court Production-Construction Corps Branch Court
In recent years, the number of cases where Internet cafés have been sued for infringement due to providing film and television works heard by People’s Courts at all levels has increased substantially, a number of new situations and new issues emerged that attracted great attention from relevant sides. In order to resolve present prominent problems existing in hearing copyright infringement cases involving Internet cafés, and appropriately hear this sort of cases well and according to the law, the following relevant matters are hereby notified as follows:
I, All levels’ People’s Courts must earnestly research and analyse the contributing factors to and present situation of the present rapid rise of copyright dispute cases involving Internet cafés, and when hearing this sort of cases, they must also, at the same time as vigorously supporting parties in defending their rights according to the law, pay attention to preventing the abuse of rights. Attention must be paid to dealing with the relationship between protection according to the law and appropriate protection well, it is necessary to both protect parties’ copyrights according to the law, in order to effectively stop acts of infringement, and to correctly determine the liability that Internet café operators and corresponding film and television work providers bear, attention must be paid to grasping judicial orientations and balancing of interests, vigorously stimulating information dissemination and standardizing dissemination order, and promoting the healthy development of the Internet culture industry.
II, We must vigorously explore effective channels to resolve disputes, and earnestly implement the work principle of “prioritizing mediation, integrating mediation and adjudication”. At the same time as strengthening litigation and mediation, vigorously promote the establishment of contradiction and dispute resolution mechanisms linking up litigation and non-litigation, give rein to the function of sector controlling departments and sector associations, adopt all sorts of measures to lead Internet café operators to standardize business activities, in order to reduce litigation, and safeguard social harmony and stability.
III, Where Internet café operators provide film or television works over which other persons enjoy copyright without permission and voluntarily through Internet cafés and infringe other persons’ right to dissemination through information networks, it shall be decided that they are to cease the infringement and compensate damage on the basis of the plaintiff’s litigation request. The determination of compensation amounts must be reasonable and appropriate, and must conform to the characteristics and reality of Internet café business operations, apart from considering the market influence, popularity, screening period and reasonable licensing use fees of film and television works involved in the case, consideration of the service price, scale, extent of subjective fault of the Internet café, as well as the nature and duration of the infringement, the number of hits or downloads of infringed works, local economic and cultural development situations and other factors shall be stressed.
Where laws and administrative regulations provide otherwise in relation to the circumstances in which Internet café operators bear liability for infringement, those provisions are to be implemented.
IV, Where Internet café operators can prove that the film and television works involved in the case have been obtained lawfully from film or television work providers having business qualifications, and they did not know and there was no reasonable reason that they should have known under the concrete circumstances at the time that the film or television works involved in the case infringed other persons’ right to dissemination through information networks, they do not bear civil liability for compensation of damage. But where Internet café operators do not timely adopt necessary measures after notification by rights holders, they shall bear corresponding civil liability for a broad part of the damage.
V, Where Internet café operators requests that the provider of the film or television works involved in the cases is added as a joint defendant, it may be decided on the basis of the concrete circumstances of the case whether or not they are added as litigation participants.
This Notice takes effect on the date of promulgation. If there are issues or new situations in implementation, please timely report this up the hierarchy to the Supreme People’s Court.
25 November 2010