Enforcement against Online IP Rights Infringement in China
date: 2013-08-16 John Z. Wang, Elena G. Gu Read by:

The explosive growth of the Internet has brought about unprecedented changes to the ways people consume and interact with media. Online infringement, however, has simultaneously increased.

Forms of online infringement
Currently, most domestic jurisprudence concerns online infringement of copyright and trademark rights and descriptions of such behaviour. There are, however, no clear definitions of the type of behaviour that constitutes online infringement. Online infringement can be loosely described as conduct which takes place online, without the rights holder's authorisation or in violation of the law, and which illegally harms the rights holder. According to the law, such conduct constitutes a civil rather than a criminal offence. Online infringement involves all major IP rights, including copyrights, trademarks, patents, domain names, and unfair competition.

Copyright infringement
As a result of the intangibility of the copyright and the almost boundless scope of the Internet, websites frequently publish copyright-protected works without the copyright holder's consent. In addition, content from media websites (e.g., newspapers and magazines) is often directly copied and published by others. Both of these behaviours constitute copyright infringement.

Trademark infringement and unfair competition
Operators that wish to conduct transactions online must have their own domain names. The Internet boom means that domain names in turn have become increasingly valuable. As the value of domain names has increased, Cybersquatting has become more prevalent: in other words, the names or trademarks of well-known companies are pre-emptively acquired as domain names, either for use or for sale or transfer to the rights holder.

Sale of infringing products
With the development of e-commerce, online infringement has become a major challenge for all rights holders and other interested parties. Cheap products that infringe registered trademarks and/or patents are offered on or through third-party online shopping platforms, such as alibaba.com and taobao.com.

China now requires online trading platforms to implement a real-name registration system when natural persons apply to sell goods or services through such platforms, in order to ensure that the operator's identity information is accurate and traceable. Online trading platforms must also establish internal regulatory systems to deal with complaints regarding IP infringement and counterfeit goods. Once investigation confirms the truth of an infringement complaint, the relevant content should be removed immediately. Furthermore, online trading platforms and websites on which the sale of counterfeit goods is rampant may ultimately be shut down by the relevant internet service provider (ISP).



Relief options

Complain to ISPs
Article 36 of the Tort Law states "a network user or network service provider who infringes upon the civil right or interest of another person through its network shall assume tort liability."

Where a network user commits a tort through a network service, the victim of the tort is entitled to notify the ISP to take such necessary remedial measures as deletion, access restriction, or disconnection. If, upon notification, the ISP fails to take the necessary measures in a timely manner, it shall be jointly and severally liable for any additional harm together with the network user.

Where an ISP knows that a network user is infringing on a civil right or interest of another party through its network services and fails to take necessary measures, it shall be jointly and severally liable for any additional harm together with the network user.

Therefore, if it is difficult to locate the infringer online, the rights holders can notify the ISP and request that any links to or advertisements from the infringer be blocked. ISPs may need to check the requesting party's certificate of IP rights and may require details of the alleged counterfeiting or infringement.

Administrative enforcement
The primary vehicle for enforcement in China is administrative enforcement through the different authorities that deal with infringement, including the National Copyright Administration, the State Administration of Industry and Commerce, the State Intellectual Property Office, and their local counterparts.

Copyright owners in China are granted additional protection for the transmission of works online. Several statutes create a legal framework that provides copyright holders with the necessary statutory basis to effectively bring actions against online infringers. Additional copyright protection for online audiovisual works can be obtained through the State Administration of Radio, Film and Television, as evidenced by its recent takedown of numerous allegedly infringing online video websites.

Of key importance to copyright owners when dealing with online infringers is the administrative takedown mechanism, which is similar to that set out in the US Digital Millennium Copyright Act. A safe harbour from liability is also available for websites that were unaware of the infringing activities.

With regard to enforcing registered trademark rights, rights holders can invite their local Administration of Industry and Commerce to take enforcement action against parties offering counterfeit goods for sale. The enforcement method is similar to that used for enforcing patents before local IP offices. If the administrative government concludes that the infringement has breached the criminal threshold, then the case will be transferred to the Public Security Bureau and criminal proceedings may be initiated. Private criminal proceedings are also available; however, it can be difficult for rights holders to secure sufficient evidence, so this route is often unsuccessful and not recommended.



Judicial enforcement
Administrative enforcement is an efficient means by which to enforce against online infringement in terms of the cost and time savings it affords. However, authorities never grant damages at the administrative enforcement level. If the rights holder wants compensation, it must go through judicial channels.

The Chinese judiciary is divided into basic courts, intermediate courts, high courts, and the Supreme Court. In major metropolitan areas, the intermediate court will be the court of first instance for many IP cases. Courts in major metropolitan areas, such as Beijing, Shanghai, and Guangzhou, handle the majority of IP cases. Due to this specialised capability and the associated protection that primarily exists only in major metropolitan areas, companies should choose the appropriate forum for litigation with care.

Online data privacy

China has a sound constitutional basis for protecting the privacy of individuals in their online interactions. A collection of laws and regulations are primarily focused on protecting internet users from accessing inappropriate content. With the much-anticipated enactment of the new Personal Privacy Law, it is likely that increased focus will be placed on protecting individuals' personal data as they communicate online.

Although there may be limited implementation of online privacy policies by Chinese websites, citizens still expect their personal privacy to be protected as they surf the Internet. Such expectations seem reasonable, as various aspects of personal privacy are protected under the Constitution. Article 40 of the Constitution provides that freedom and privacy of personal correspondence is protected by law. Electronic correspondence, such as that conducted on the Internet, is protected under Section 7 of the Regulations on the Administration and Protection of Computer Information and Network Security. However, under Sections 8 and 13 of these regulations, online service providers must turn over relevant personal data to government authorities when illicit activities are suspected.

However, efforts are ongoing to draft a personal data protection law that would protect against the misuse of personal information, both on the Internet and in offline activities.


Whether through administrative or judicial enforcement and civil or criminal action, rights holders have viable mechanisms through which to protect their rights in China. Although levels of online infringement remain high, foreign and domestic rights holders can look forward to a bright future for both the monetisation and protection of their valuable content over the Internet.

Major laws and regulations relating to online infringement of IP rights in China

Name of law or regulationsFieldEffective date and promulgating institution
Trademark LawTrademarkJuly 1 1993; Congress
The Regulations on the protection of right of dissemination via information networkCopyrightJuly 1 2006; State of Council
Interpretation of the Supreme People's Court on certain issues related to the application of law in cases involving computer network copyright disputesCopyrightDecember 8 2006; Supreme Court
Provisions of the Supreme People's Court on certain issues concerning civil dispute cases involving conflict of a registered trademark or enterprise name with any pre-existing rightTrademarkMarch 1 2008; Supreme Court
Interpretation of the Supreme People's Court on certain issues concerning the application of law in cases involving civil disputes over computer network domain namesDomain nameJuly 24 2001; Supreme Court
Dispute resolution methods on internet domain names in China Internet Information CenterDomain nameJune 28 2012; China Internet Information Center
Tort LawInternetJuly 1 2012; Presidential decree