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  • How to Notify the Tortfeasor Effectively, which Encountering the Infringement by Network?

    How to Notify the Tortfeasor Effectively, which Encountering the Infringement by Network?

    The FOCUS Company has obtained an exclusive information network transmission right of several works, which have been found to be spread by others by Baidu Pan. So The FOCUS Company sent a “Notification Letter” to the Baidu Company, and requested it to delete the relevant works. However, the Baidu Company did not delete the relevant works, and The FOCUS Company filed a lawsuit against the Baidu Company. In the litigation, the dispute focused on whether the “Notification Letter” is a valid notice. The court of the first instance held that it is a valid notice, however, the court of the second instance held a contrary opinion. (Refer to (2018) Su Min Zhong No.1514 Civil Judgment)

    In practice, similar cases are not rare. The validity of the notice is the key element for determining whether the network service provider is in fault and shall undertake the joint liability for the improper expansion of the harmful results.

    The validity of the notice shall be determined by two aspects, which are the measure and content.

    First, regarding the measure, according to Article 13 of the “Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law to Trial of Civil Dispute Cases of Infringement of Information Network Transmission Rights” (FA SHI [2012] No.20) , the right holder could send the notice in writing, by fax or email, and etc.. Although in the (2015) Zhe Zhi Zhong Zi No.186 Civil Judgment, the Zhengjiang High People’s Court points out that the notice could be oral or written, it is still highly recommend to send the notice in written.

    Second, regarding the content, according to Article 14 of the “Regulations on Protection of Information Network Transmission Right”, the notice shall state the following content: (a) name, contact method and address of the rights holder(s); (b) the title and network address of the infringing works, performances, audio and video products being the subject matter of the request for deletion and removal of links; and (c) preliminary evidence of infringement. Article 5 of the “Provisions the Supreme People’s Court on Application of Laws to Cases Involving Civil Disputes over Infringement upon Personal Rights and Interests by Using Information Networks” has stipulated similar requirements, but it changes the “Right Holder” into the “Notifying Party”, which means the party authorized by the “Right Holder” could send the notice as well.

    Therefore, normally, the content of a valid notice shall meet the following requirements.

    1. The information of the “Notifying Party” shall be comprehensive, which shall include the name, contact method and address of the rights holder or its authorized party. In the case, (2016) Gan 03 Min Zhong No. 60, the court held that the “Attorney’s Letter” was a valid notice, although it had not stated the comprehensive information of the “Right Holder”, it had stated the name of the attorney, attached the authorization letter of the “Right Holder”, and the delivery sheet had stated the contact phone number and address of the attorney.

    2. The request for deletion and removal of infringed works shall be clear and accurate. The “Notifying Party” shall provide the relevant network address or link and etc.. In the case in the opining, the court of the second instance pointed out that “Although the court did not strictly require the content of the notice shall meet all the requirements in the above regulations in other cases, a valid notice shall at least help the notified party to find the infringed works easily and quickly, by which the notified party could initially get to know the tortfeasor and the infringement.” In view of this, in order to find the infringed works, if the notified party has to conduct a comprehensive investigation or update the current technologies, then the burden of the network service provider is too heavy, and the consequence is that such notice might not be deemed as a valid one.

    3. The notice shall state a clear excuse. Normally, the certification of the “Right Holder” shall be attached.

    However, it shall be noted that Article 14 of Fa Shi (2012) No. 20 has stipulates that in determining whether a network service provider has promptly taken necessary measures such as deleting, blocking or breaking links, the courts shall consider comprehensively the facts such as the forms of the notice sent by the rights holder, the accuracy of the notice, the difficulty of adopting measures, the nature of the network service, the type, popularity and quantity of the work, performance or audio and video product. Therefore, from the perspective of the “Right Holder”, it is recommended to send the notice by considering the above aspects, and keep the relevant evidence.