Institute for Internet Policy & Law @ Beijing Normal University

The WIPO Seminar was held in May 25-26, 2011 in Bangkok. Officials from WIPO, Thailand, Korea , China, India, Philippians, Nepal, Pakistan and a few other Asian countries participated in the Seminar and briefed on the pertinent countries’ legal development of copyright law and intermediary liability. Generally, Asian countries, big or small, either have recently enacted or revised the copyright laws or are going to do so. It is noteworthy that the emerging powers or new economies in Asia like China and India are revising their copyright laws respectively, which could have impact in the international arena. Digital technology and free trade  are the driving force for the new wave of law-making. The most interesting parts are the presentations by the Resource Persons (Legal Experts) invited by WIPO. Prof. Xue, as the only Resource Person from China, gave a presentation and participated in the subsequent discussions.

Intermediary liability is a critical issues across the jurisdictions and legal systems. Given that no treaty law available on this issues (two WIPO Internet Treaties generally silent on this), a series of studies to exam the comparability and compatibility across the legal systems are very necessary. The three pillars of the liability, namely configuration, limitation (safe harbor defenses) and assistance obligations, are all evolving in Anglo-American common law, civil law, EU law and Chinese law. There are a rich body of statutes and cases available for the comparative study.

It’s been raised in China whether web cache is caching, which may be eligible for safe harbor defense? Web caching, which has been existing from or before Google, is generated by spiders of search engines proactively, rather than triggered responsively by the request of the users, may have insignificant technical difference from caching. However, legally it would be very absurd to distinguish them. If web caching is not caching for the purpose of DMCA Sec.512 (d), what else would be more applicable? It is obviously “automatic storage” in terms of the Chinese Regulations on Right of Communication via Information Network. It is argued that the originator (or source of communicator) has lost the control of cached contents. But this is wrong again. Even for the responsive caching, the originate is still at the mercy of the caching system, rather than having the capacity of direct control. Distinction of the proactive caching from the responsive one can only distort the well-established defense system for the secondary liability. As far as it is automatic storage to improve the efficiency of transmission, it is the caching and should be directly liable for infringement. Otherwise, we have to take down the whole Google, Baidu, Yahoo and all the other search engines. The law-making and judicial practices should be fool-proved and not affected by the biased (for undisclosed commercial interests) minds.

Also it is despising that many Chinese IP academicians are doing research based on indirect and outdated information. One guys boldly stated French 3-strike law (HADOPI) was struck out by the Constitutional Court “in May 2011”! How odds. Didn’t he know that that what was knocked out is the 1st Version of the Law in 2 years ago and the 2nd Version had long been passed by French Legislature a month later.  The Law has been implemented for 2 years. Ignorance is absolutely the enemy of knowledge.

Council of Europe organized the “Internet Freedom Conference: From Principles to Global Treaty Law? Content, Stakeholders and Form” on April 18-19 in Strasbourg, France. The Conference Video is now available online. I joined the conference and presented at “Panel 5: International lawmaking in their respective roles and responsibilities.” Although there are documents available, I’d suggest everyone take a look at the videos that are much more revealing.

The Conference is interesting in several aspects. Firstly, CoE published two background documents for discussions. One is “Internet Governance Principles” and the other is “Protection and Promotion of Internet’s Universality, Integrity and Openness.” According to CoE’s interpretation, the former one is applicable to all stakeholders while the latter primarily applies to the Member States. These documents are no doubt thoughtful outputs on Internet Governance, although they are obviously still under construction. Some contents are missing and some needs to be adjusted. Secondly, CoE is now taking brave steps to measure the possibility of having a “global” treaty law on Internet governance, after the successful enactment of Cybercrime Convention. Although the name is weird to legal community–there has no global but “international” treaty law, it may open up our mind as I stated on a few critical governance issues, such as cyber-peace, cyber-security and cyber-openness. Thirdly, it is really interesting to watch the extremely diverse reaction from different stakeholder groups. Governments seem naturally supportive to treaty regime while business community casts serious doubt on it. Civil society and academic have different views and mixed feelings about “legalization” of Internet governance. Finally it was a very fruitful and inspiring brainstorming. It is amazing that there could be so many participants from Europe community. I talked briefly with the two other colleagues from Asia. We all agree that it would not be possible for Asia to reach the same level maturity in any near future.

The city of Strasbourg is lovable. I took a boat trip with Bill on the picturesque Ill River and enjoyed watching the water leverages learned from China. Wow, knowledge wants to share! The chatting afterward was as pleasant as the weather.

山中相送罢

日暮掩柴扉

春草明年绿

王孙归不归

In the Traditional Calendar, it will soon be Qing Ming. Unlike Halloween, Qing Ming is not a playful day and absolutely not for children. It is a day to memorize the ancestors and the other dead family. It is also a day for everyone to review the past and think about the meaning of remaining life. I guess only Chinese who can maintain such a meditation “holiday” that links up the spiritual world with the reality, the past with the future, and the dead with the live.

Meditation can make people calm down and purify their thought. But meditation may not always provide the answer people are seeking for. How many times must Baidu be sued before we can know the right and wrong in cyberspace? Baidu that occupies 70% of Internet search market in China was pushed into spotlight by a group of well-know novelists who are angry at the Baidu’s document file-share services that enable millions of literary works (particularly novels) be uploaded and shared among Internet users. Baidu had been sued for a couple of times by phonograph industry for MP3 file-sharing services. However, the contradictory decisions made by a variety of courts under the influence of those “Gold-Ruble” scholars only serve to confuse the public and blur the line of right and wrong. I’m now in belief that the liability of inducement may not be a bad solution, because it could put an end to the game of “catch-me-if-you-can” played by those intermediaries in genuine bad faith.

Yes, the file-sharing services are free of charge to users, but they are profiting from commercial ads; Yes, there is “safe harbor” available in the law, it should never shield intentional and systematic infringers; Yes, people need to access information and copyright works, but the danger to let a commercial company to maintain a major information channel to the public is even more acute and penetrating. Cannot the people see that they will be at the mercy of a company if it is allowed to monopolize the source of information and knowledge? If one day, you can only read a novel from Baidu, you would have to accept any condition Baidu imposes on you. In a poor competitive environment, the danger of such monopoly is imminent.

An interview of mine on Baidu case has been published at BNU Newspaper on April 11, 2011.

My view on Google Book Project (article published on China Copyright, Issue 1, 2011) has been completely proved by the Decision of Judge Denny Chin in U.S. district court in Manhattan. I don’t think Baidu’s services is anything better than Google’s project that also labeled as a service to the public. But the answer to Baidu’s case is still blowing in the wind in this thousand-year old country.

ICANN opened its first 2011 meeting at Westin Hotel on 335 Powell Street, San Francisco. The meeting in Spring attracted more than 1000 participants from around the world. I spent a very busy week. Many people saw me running from one meeting room to another, which proved both the hectic schedule and my hard-working.

I spent most of the time at At-Large Meeting series of course. I chaired the APRALO Monthly Meeting on March 15 (17:00pm local time) and invited the Chair, Associate Chair and a group of Members of NomCom to do an outreach to the AP Community. I led the all the policy discussions on IDNs, IANA Review, Geographic Regions and new gTLDs and allocated the works to pertinent working groups or RALO members. However, actually all these works bounced back to me. On the at-large or apac mailing list, everyone can see that I myself drafted almost all the policy statements (recently on At-Large Response to GAC-Board Scorecard Consultation on trademark measures), responded to questionnaire (recently on NTIA Questions on IANA) and edited and organized the regional responses (recently on geographic review). With respect to planning of APRALO showcase, although a talkative VC blurred his allocated program agenda item on outreach and jumped to this item, I managed to invite the Chair of NARALO Organization Committee to give a briefing. His talk was very helpful to focus the work on organization, sponsorship and outreach. I’ve circulated the messages to apac list but only one person who is not affiliated with any member ALS volunteered. Pathetic! How long can I take pains to make the whole organization operate, despite all the free-riders? I had been looked forward to being replaced by March 2011, but all the people wanted to use me for longer time. The election must be completed in May and I will step down as the Chair of APRALO on or before June 1, 2011.  That is FOR SURE.

I attended the Joint RALO meeting and pointed out that those inactive and non-participative ALSes should either be de-certified or withdraw from the RALO. It is ridiculous that an entity that had applied for to be certified as an ALS and committed to the RALO disappeared or refused to participate anymore. It is pointless to argue for loss of interests. If so, the uninterested ALS should leave at-large system voluntarily.

Among the policy meeting, the ALAC-GAC Joint Session was interesting. Most of the time was on the Scorecard consultation. I made a point that was supported by most at-large representatives from Europe, Latin America and Africa. I pointed out not all the governments in the diversified GAC had the same level of demand for trademark protection in new gTLDs and as a result they may not share the same views, but the people outside hardly heard from the those government that don’t seek overwhelming trademark protection. The response from the Chair of GAC was that IPR issues may have been traded off for negotiation on other issues. Well said, it has always been true among other international law and policy setting.

At other policy sessions, I made the comments, suggestions or asked questions on IANA Review, Government Objection against community-based new gTLD strings, IDN ccTLDs, ICANN bylaw review (WT-A), geographical area review (triple dilemma in AP: a cross-regional Small Island Chapter, a subregional or independent regional West Asia or Arab and a want-to-join-Europe Central Asia), interpretation policy and UDRP review, etc. What a busy week!

On Wednesday March 16, I took Caltrain to go to Stanford Law School. The trip was so smooth that I found the Law School Building effortlessly. At the Caltrain station, I got on the Stanford Shuttle and correctly got off at the Student Union near the Law School. The meetings with Stanford Law Professors were interesting and productive. The campus is indeed beautiful and magnificent. Hopefully those imported palm trees could survive the chilling weather Palo Alto.

2010年网络使命征文大赛－法律、社会与公益－获奖者揭晓

Winners of  IIPL-NetMission Essay Competition on Law, Society & Public Good

Institute for the Internet Policy & Law proudly announced the winners of the founding yearly essay competition for the students of master-degree and above. The competition aims to promote students’ participation in charity programs via Internet technologies, enhance social responsibility and stimulate public services.

The Competition attracts more than 20 participants from a number of universities in Beijing. The papers submitted covers electronic commerce, intellectual property, free flow of information, management of critical Internet resource and Internet for Development. The Expert Evaluation Committee is very impressed by the students’ knowledge, enthusiasm and strong wish for public good. We sincerely appreciate evaluation experts for their kind contribution of their precious time and energy. Despite all the difficulties we encountered, we are confident in the success of the competition. At Awarding Ceremony, a group of experts on e-commerce, domain names, jurisprudence and Internet policy made very insightful comments on the selected winning papers.

All the winners were awarded the Bilingual Certificates and the prizes kindly donated by CNNIC.

Two winners were later invited by Asia Pacific Network Group (APNG) Camp to present on Beijing-Hong Kong NetMission Join Forum on February 23, 2011. APNG Camp was concurrent to APRICOT 2011, which is the largest Internet conference series in AP Region. Prof. Xue gave a presentation on the NetMission Essay Competition and Youth’s Mission on the Internet. The Director Jiyi Li, Department of Youth Affairs, Liaison Officer of the Central People’s Government in the Hong Kong SAR and Director Florence Hui, Department of Civil Affairs, Government of Hong Kong SAR were present at the Joint Forum.

Winners/ 获奖论文

一等奖 1^st Class Winners：

唐慧俊 对外经济贸易大学博士研究生《论电子商务中消费者知情权的法律保护》

Huijun Tang, Ph.D. Candidate of University of International Business and Economics

刘磊 北京师范大学博士研究生《互联网环境下著作权保护博弈对最不发达国家教育资源利用的影响》

Lei Lu, Ph.D. Candidate of Beijing Normal University

二等奖 2^nd Class Winners：

刘娟 对外经济贸易大学博士研究生《不同所有制企业基于互联网的商务运营绩效分析》

Juan Liu, Ph.D. Candidate of University of International Business and Economics

伍梦璇 北京师范大学法学硕士研究生《让所有人看见互联网－著作权的社会责任》

Mengxuan Wu, LLM Student of Beijing Normal University

姚志伟 北京师范大学法律硕士研究生《互联网上外国影视作品的著作权保护》

Zhiwei Yao, J.M. Student of Beijing Normal University

三等奖 3^rd Class Winners:

吴冬梅 北京师范大学法律硕士研究生《“错案”之外——由“王鹏诽谤案”引发的一点思考》

Dongmei Wu, J.M. Student of Beijing Normal University

赵璐 北京师范大学法律硕士研究生《P2P软件提供者的版权侵权责任研究》

Lu Zhao, J.M. Student of Beijing Normal University

耿珊珊 北京师范大学法律硕士研究生《论网络环境下商业秘密的保护》

Shanshan Geng, J.M. Student of Beijing Normal University

Warm Congratulations to All the Winners! Thanks to CNNIC for kindly donating the prizes for winners!

Thanks to all the participants!