For the first time, China has a specific law on tort. Passed on December 26 2009, the Tort Law will come into effect on July 1 2010.
Very little is said about IP protection in the Law. However, Article 36 of the Law states that an ISP will be held jointly and severally liable for the infringing acts of a website operator that uses its services if it is aware that the content provided by the website operator infringes the rights of another person and it does not take necessary measures to remove the infringing content from its server or otherwise make the content inaccessible on the internet. This Article also expressly provides that the rights owner is entitled to serve notice on the ISP requiring it to take the necessary measures to remove the infringing content.
Currently, certain protection is provided against aiding and abetting activities of an ISP.
In relation to copyright, the Supreme People's Court's Interpretation of Several Issues Relating to the Application of Law to Disputes over Copyright on Computer Networks (2006) contains provisions similar to those in the Law.
For trade marks, Article 50(2) of the Trade Mark Implementing Regulations deems the act of intentionally providing facilities such as storage, transport, mailing and concealment for the purpose of infringing the exclusive trade mark rights of another person to be contributory infringement. It can be argued that the provision of internet services is also a type of facility envisaged under Art 50(2).
In terms of patents, the very loose language in Article 148 of the General Principles of Civil Rights providing that a person aiding and abetting another person in infringing activities should be held jointly and severally liable can provide certain remedy to the patentee.
With the clear wordings in Article 36, the Tort Law provides an effective way to deal with IP infringement on the internet.
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| Howard Tsang |
Wilkinson & Grist
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