Development of Hosting ISPs’ Secondary Liability for Primary Copyright Infringement in China – As Compared to the US and German Routes

Abstract

This article takes a comparative approach to studying the development of hosting ISPs’ secondary liability in China, namely by referring to relevant rules in the US and Germany as examples. In particular, this article compares how the courts interpret the main imputed factors in these three jurisdictions such as monitoring responsibility, knowledge of infringement, measures against repeating infringement, benefit from infringement, and inducement. Through the aforesaid comparison, this article notes that the development of hosting ISPs’ secondary liability in China has been deeply affected by the relevant rules in the US and Germany, but it is also marked with its own characteristics such as requiring the hosting ISP to exert a higher level of duty of care on hot-play films and television dramas, and famous works. Moreover, this comparison also reveals that although China, the US, and Germany mainly rely on different approaches to solve hosting ISPs’ secondary liability, the recent case decisions in these three jurisdictions have shown some common tendencies, for example, receiving benefits has become a less important imputed factor, and the courts tend to pay more attention to hosting ISPs’ intent and commercial model when deciding liability.