Gatekeeper Liability for Online Intellectual Property Infringement in China
You are invited to this seminar at the Cube.
Jun 17, 2022, 01-02 PM
The internet is not a place where rules do not apply, and China is further mounting its regulations on internet. In the case of copyright or trademark infringement in the cyberspace, Chinese judicial decisions show that the role of internet service providers (ISPs) is shifting from neutral to a “gatekeeper”, As a result, interests among triple parties (users-ISPs-IP holders) are out of balance: the freedom of speech of users and business freedom of the ISPs are endangered, and IP right holders get overprotection, which may not be necessarily in line with IP law’s objective of encouraging innovation.
In the 1990s, Chinese courts, by referring to the “Safe Harbors” rules from the US law (Section 512 of the DMCA) and contributory infringement doctrine in tort law, held the ISPs liable for secondary infringement when they fail to act timely to stop infringement when receiving notice from IP holders or in the presence of infringement that is as obvious as “red flag”.
While since the early 21st century, China has been implementing a policy for severely cracking down online piracy. Moreover, the speech censorship doctrine in public law is infiltrating into intellectual property (IP) law. Therefore, in many scenarios, ISPs are required to undertake “a higher standard of duty of care”, i.e. to proactively detect infringement in their platforms.
Such doctrine is reinforced by the growing feasibility of AI filtering technology. Seemingly, ISPs’ technical ability to fulfill the duty of gatekeeping has been used to justify such duty in law.
This approach deserves a second look. First, the general duty of gatekeeping risks the ISPs’ business freedom, due to the additional costs for filtering technology and manual review as well as pressure to change business model. Second, the ISPs are unable to correctly identify copyright or trademark infringement, as infringement is not a mere technical problem in black and white but needs legal evaluation. To minimize liability, ISPs are likely to classify more articles as infringing, threatening users' freedom of speech. Third, the "good Samaritan" doctrine does not oblige someone to rescue her neighbors. Accordingly, ISPs’ inaction to infringement are not naturally blameworthy. Neutral ISPs should be free from being a “gatekeeper”.
About the Speaker
Dr. Jingjing Hu is a lecturer of intellectual property law at the Southwest University of Political Science and Law in China. She holds a Ph.D. in civil law from Peking University and had academic stays in the Max Planck Institute for Innovation and Competition, the Institute of Intellectual Property affiliated to the Japanese Patent Office, and the University of Warsaw. She received the “Young Asian Intellectual Property Scholar Award” in 2020 from the City University of Hong Kong and Singapore Management University.
As a visiting scholar at the University of Oxford, Jingjing is conducting a study on the intermediary liability for copyright infringement. Her research interests are broadly in fundamental issues of intellectual property and intellectual property on the internet. Her published works include Algorithm Bias in the Public Sector: Return of the Due Process (Intellectual Property Journal sponsored by China Intellectual Property Society 2022), Determining Damages for Patent Infringement in China (IIC 2016) and Claim Grounds for Unjust Enrichment of Intellectual Property Rights (Law Science, CSSCI, 2014). Her paper titled “On the Knowledge Rule: From the Perspective of the Distinction between Intention and Negligence” won the second prize in China’s National Doctoral Academic Forum (Law) in 2013. She also acts as a senior IP consultant in a Chinese law firm.