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Xuehong: Baidu cannot disappear into the safe haven

Published: 2011-04-11

Topic Background:

Baidu is China' s primary Internet search engine. On March 16, an official document called "Crusade against Baidu on March 15th" written by Murong Xuecun, and co-signed by nearly fifty popular writers including Jia Pingwa, Han Han, Li Chengpeng, Dangnianmingyue, and Guo Jingming among others, quickly occupied the major web portals in China, which is as good as a blockbuster dropped by writers on the International Day for Consumers' Rights and Interests.
As a matter of fact, Internet infringement is not new. Earlier, the free music downloads had made the entire music industry fall into the doldrums. Google’s Digital Library infringement in 2005 had also attracted widespread concern, although China's copyright owners argued against it in court; until now there is still not a reasonable result.
In this regard, Baidu responded: "The content is uploaded by users, and also downloaded by users, so it is not our responsibility." However, writers and publishers do not agree with that analysis. Many publishers believe that Baidu not only provides users a network platform for their infringement, but also undermines the interests of the major publishing houses; however the majority of users hold differing opinions on the topic.
We invited Professor Xue Hong, who is a member of the China Intellectual Property Research Association, an expert in the domain name dispute resolution process of WIPO, and the director of Center for Internet Policy and Law of BNU Law School, to give us an in-depth interpretation of the rights and wrongs behind the "Baidu library storm." The following is her response.


Who moved the cheese of copyright owners?

The issue of Baidu’s library is not a dispute between technology and law, and it is not the case of lagging laws restricting the development of rising technologies. Deng Xiaoping had said:"Science and technology are primary productive forces." Law, as the superstructure, must conform to and reflect scientific and technological development. Baidu's problem is not that it invented a new technology, but that it touched the red line of law by using existing technologies in business activities.
Baidu Library, previously called Baidu "document sharing platform," launched in November 2009. Baidu itself thinks the Baidu library is a free "technology platform," and the library is just a network service provider, which only provides space services and does not participate in and interfere with content creation, neither uploading nor downloading. Essentially, the Baidu library has gone far beyond the level of a so-called "technology platform" but is deeply involved in the intervention of information dissemination on the Internet. Many publishers define the Baidu library as a digital publishing system, which I think is not accurate, and in my opinion, the Baidu library mainly acts as the dissemination intermediary of an information network.
Here we return to the issue of who moved the cheese of copyright owners. In fact, the most direct infringer is one who directly publishes content on the Baidu library without being authorized. But the Baidu library, as a network transmission medium, a computer system, or another facility inevitably stores and sends this information. In my opinion, it stands to reason that the Baidu library should assume the responsibility.

Baidu abuses the principle of "safe haven"

Baidu Library has been emphasizing a "safe harbor" principle in the face of the crusade storm, which is an act of kidnapping consumers and an abuse of the "safe haven" principle.
I was among the earliest to study the "safe haven" theory of the copyright law in China. "Safe haven" provisions refer to cases of copyright infringement. When the network service provider is informed of an infringement, they have the obligation to remove the infringing material. The haven application consists of two parts, namely "notice + remove." It operates on the assumption that the network escrow has no capacity of prior censorship and no prior knowledge of the existence of infringing information. Therefore, observing the "notice + removed" rule is the protective provision for new industries of network intermediary services.
The application of the "safe haven" principle is conditional, and Baidu does not concur with this principle. It is impossible for Baidu not to know the Baidu library is flooded with a lot of pirated content. Earlier this year, the documents in the Baidu library have exceeded 200 million copies with a daily volume of several million copies being downloaded. There are more than 2.7 million copies of literary documents, including the popular works by Liu Xinwu, Jia Pingwa and other famous writers as well as many original network novels. Facing such long-standing large-scale infringement, how can Baidu be an outsider and hide in the harbor? In addition, the Baidu library has done a lot of promotion and publicity, attracted advertisers with great page views, and put in a lot of ads. Due to the large amount of infringing works, the Baidu library has a huge network traffic, and in the Internet industry the traffic means the advertising amount, so Baidu cannot hide in the "safe haven," since it seeks commercial interests using large-scale infringement.

How writers get their interest?

For the other side of the storm - writers and publishers, how to get their own interest? In my opinion, there are three ways; the first is the ongoing crusade of writers, who must be in consultation and negotiation with Baidu. This will have two results: one is through mutual agreement, Baidu and copyright owners reach an agreement of sharing the interests; the other is the breakdown of negotiations, accordingly it could go to the other two roads - arbitration and litigation.
All in all, the conflict between business model development and technological innovation must be solved by legislative and judicial means. Copyright owners can obtain their own "cakes" through legal means.
We cannot rely on a business organization to solve the problem. Baidu has a dominant market position in China, which plays a large role in the Baidu library controversy. If a fully competitive market has strong competitors, it will take the initiative to negotiate with the copyright owners and create a reasonable price. It is very dangerous to allow one company to control and monopolize a large number of social information resources. The government cannot allow the unlimited expansion of such market behavior, which ultimately monopolizes the access to information sources.

How to open the infringement "deadlock" of network information dissemination

Frankly speaking, there is not a good global solution, and the whole world is still exploring the options. Here are several possible solutions available for your reference.
First, to completely legalize online sharing. There have been related proposals in Brazil. But we have to face such a problem: we all come to share, who will work? Who will bear the cost of the creators? There are two possible options: one is to claim additional fees for copying products and transfer them to the copyright owners. This form has been implemented in Europe for many years, which I think certainly is not easily accepted, because no one wants to spend more money. Another form is that the sharing system is free, but with ads being loaded. The ads are loaded by the copyright owners to promote themselves. Due to various limitations of the two ways, neither solution is popular.
Second, to strictly enforce the law. In countries where the copyright industries are most developed, there is such a strict law enforcement, which fights against not only the sharing platform with infringement, but also against individuals uploading content without being authorized, and criminal sanctions are used. Under our present national conditions, I think such form would be disapproved by a vast of network information consumers.
Third, to make some legal adjustments. The rights of copyright owners do exist, but there are legal restrictions on these rights. For example, our law provides that under certain circumstances, relevant work can be free, and the copyright owner shall not interfere. In addition, the law gives users prior legal permission, but they need to pay remuneration to the copyright owner. Collective management organizations, such as the Copyright Society of Chinese Literary Works and the Music Copyright Society of China can also play a role.
The last one is the self-help of copyright owners. Copyright owners can use the Internet to help themselves. They can set up their own network platform, authorizing others to use for free or a limited use.
Today, we are a network information society, and we should change the traditional one-way thought that intellectual property protection only concerns copyright owners into a multidimensional thought taking into account the copyright owner, the media, and consumer interests of all parties. Such changes should not be regional, national, but should be global in scope. Especially in the spreading environment of the Internet, the effect of any single country is limited. The Baidu library copyright dispute is a problem occurring because of resource sharing in the Internet era, and there are no easy solutions. However, if we can stick to the principle of protecting common information resources of human beings, and safeguarding the public access to knowledge and information, we will be able to find the answers that fit the public interest maximally. (Beijing Normal University Newspaper / Author: Qi Xuejing)



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