“Safe Harbor” Doctrine: A Panacea for Chinese Search Engine’s Copyright Infringement Liability or Not


Fact summary

Court judgment

Key comment

IFPI v. Baidu (2006)

Baidu was sued by 7 int’l record companies through IFPI for uploading and downloading their copyrighted songs on its search engine service

Beijing’s 1st Intermediate Court ruled for Baidu on November 17, 2006. Beijing High People’s Court rejected IFPI’s appeal on December 30, 2007 saying that Baidu’s service does not constitute an infringement

Whether or not Baidu’s act violated a copyright owner’s exclusive right of distribution under Article 10 (6), PRC Copyright Law and Article 8, WCT

IFPI v. Yahoo! China (2007)

Yahoo! China was sued by 11 int’l record companies through IFPI for uploading and downloading their copyrighted songs on its search engine service

Beijing 2nd Intermediate People’s Court ruled for IFPI. Yahoo! China should remove their songs search links from its Web site and compensate plaintiffs damages on April 2007. Both parties appealed. Beijing High People’s Court rejected the appeals and sustained the original judgments on December 23, 2007

Yahoo! China failed to get exemption from “safe harbor doctrine” appeared the court’s changing attitude and indicated that search engine has a long way to develop safely

Resource Compiled by Yimeei Guo and Zhengzheng Fang (December 18, 2009)

In both cases, the premise was the same: Record companies were claiming that search engine providers infringed their music copyright by providing links to download copyrighted music. Nevertheless, the outcomes of these two rulings were completely different.

While analyzing the judgments, the following reasons should be taken into account:

First, “Ordinance on the Protection of the Right to Network Dissemination of Information” (hereinafter “the Ordinance”) came into effect in July 2006 and did not apply in the Baidu case.

Second, the plaintiff of Yahoo! China case argued for both contributory liability and direct liability, while the plaintiff of Baidu case argued mainly for direct liability, and the argument on direct liability all got rejected.

Third, Baidu was also not contacted regarding the infringing music search links, and as such could not be proved to have known or should have known about the infringing links. While in ‘Yahoo! China’ case, the plaintiff sent “take down” notice and the defendant removed only the URLs provided by the copyright owners, which the court believed to be an “obvious indulgence” of infringement (see footnote 1).

But in general, the reasons for the different rulings are not so obvious or fully convincing. According to the judgments, Baidu was not considered to have the ability to distinguish and control the infringing music search links, while Yahoo! China was considered to be a professional music search Web site, which apparently increased the requirements for Yahoo! China. That is, although China has adopted safe harbor doctrine and made a great progress in legislation. The judges still have considerable discretion such as deciding search engines’ awareness of infringement or not; thus, there are still much to be done so that safe harbor doctrine achieves the desired results in China. For example, the restrictions on the authority of judges and the improvement on the judges’ professional level should be put to the agenda.

19.3 “Safe Harbor” Doctrine of China

19.3.1 Brief Explanation of the “Safe Harbor” Doctrine

Before “the Ordinance,” online copyright disputes were ruled by the 2001 China’s Copyright Law and the “Interpretation by the Supreme People’s Court of Several Issues Relating to Application of Law to Trial of Cases of Dispute over Copyright on Computer Network” amended and taken effect in 2006, which were obviously not enough to handle the increasingly sophisticated and abundant network copyright disputes. “The Ordinance” not only filled the gap of regulation on this issue, but also brought in “safe harbor” doctrine. According to “the Ordinance,” search engines that qualify for “safe harbor” protection will not be liable for certain illegal activities (such as copyright violations) performed by their customers (Table 19.2).

Table 19.2
“Safe harbor” Doctrine in USA and China

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