PTC FORUM : PUBLICATIONS

CHINA / COPYRIGHT / HYPERLINKS

Internet Service Providers' liability for hyperlinks

Wang Fanwu

China Patents and Trademarks, Vol 15 No 2, April 2001

This article, by the Deputy Presiding Judge, Intellectual Property Tribunal, Beijing No 2 Intermediate People's Court, is based on a recent case, raising issues of interest to Internet users and providers throughout the world. In Liu Jinsheng v Sohu Aitexin Infor-Tech (Beijing) Co Ltd, the plaintiff alleged that the defendant's website had infringed his copyright by publishing without authorization his translation of Don Quixote, enabling Internet users to browse and download it. The defendant, an Internet Service Provider, denied uploading the work but said that it had legitimate hyperlinks to three websites on which the translation was available. It appears that these websites were not authorised to display the translation. The Court held that, having failed (at first) to comply with the plaintiff's request to discontinue the hyperlinks, the defendant had infringed copyright law. The author of the article points out that hyperlinking is merely a tool for searching other websites and is neither an act of reproduction nor a form of dissemination of a copyright work. If the hyperlinked information is "flawed", as the author puts it, it is for the transmitters of the information rather than the Internet Service Providers to be legally responsible. However, in the present case, the plaintiff had drawn the defendant's attention to the "flaw"; and the defendant, instead of taking active measures to discontinue the hyperlinks with the websites on which the plaintiff's work was illegally uploaded, maintained the hyperlink. He thereby encouraged the infringement. "Although it is hard for a defendant to manage the information content on the websites with which it is hyperlinked, it is technically possible to control the hyperlink between the [defendant's] website and other websites." By failing to exercise this control, after being told that the plaintiff's copyright had been infringed, the defendant rightly incurred a legal liability for extending the infringement. [20055]