International Trade Lawmaking @ 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.