NEW YORK UNIVERSITY
JOURNAL OF INTELLECTUAL PROPERTY AND ENTERTAINMENT LAW VOLUME 4
SPRING 2015
NUMBER 2
ESTABLISHING AN INDIRECT LIABILITY SYSTEM FOR DIGITAL COPYRIGHT INFRINGEMENT IN CHINA: EXPERIENCE FROM THE UNITED STATES’ APPROACH BY XIAO MA* In order to address the digital revolution that has challenged copyright protection, China has carried out a series of legislative attempts at developing an indirect copyright liability system in recent years. The joint tort oriented, knowledge-centered liability attribution rules and a set of borrowed safe harbor provisions from the United States have set out the rudiments of the indirect copyright liability regime to deal with digital copyright infringements. However, there have been constant debates on the confusing joint tort law underpinnings, the inconsistent knowledge standard and the conflicting nature of safe harbors, which are major factors impeding the effective copyright law enforcement and the efficient operation of the intermediary’s business. Through analyzing current rules in China and the United States, this article finds that compared to the borrow-to-use approach, a more efficient build-tosuit approach for a viable legal transplantation is recommended. To construct an efficient, well-balanced and predictable indirect copyright liability system
*
Dr. Ma received her PhD in Law from Bangor University in 2015 with financial support
from the China Scholarship Council and the Bangor Law School. She also received an LLM in Commercial Law from Bangor University and an LLM in Constitutional and Administrative Law from Shandong University. Her gratitude goes to Dr. Wei Shi for his suggestions on an earlier draft of this article and to JIPEL members for their editing work and support in publishing this article. 253