CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
12. Additional Considerations 12.1 Emerging Issues
12.2 Trade Mark and Copyright Use on the Internet The liabilities of internet service providers (ISPs) in China are regulated by the Civil Code and the E-Com - merce Law. If an ISP infringes upon the civil rights or interests of another party through its network, it is responsible for the infringement. In cases where network users utilise the network’s services to commit infringements, the party that has suffered the infringe - ment has the right to notify the ISP to take necessary action, such as deleting, blocking or disconnecting links. To request the removal of infringing material from online marketplaces or platforms, rights-holders typi - cally need to provide a notice to the ISP or platform operator. This notice should contain specific informa - tion about the infringing material and evidence of own - ership or authorisation. If the ISP or platform operator fails to take timely action after receiving the notice, they will be jointly and severally liable with the network user for the additional damages caused. In order to remove goods that the rights-holder claims are infringing, the ISP or platform operator may require trade mark registration certificates as proof of trade mark rights. While a copyright registration certificate is not mandatory, having such a certificate can pro - vide clearer evidence of ownership and expedite the takedown process.
Punitive Damages and Bad-Faith Registrations “Punitive damages” in trade mark infringement cases are receiving attention. Some provincial courts have issued further explanations on the implementation of “punitive damages”, which is regulated in the 2013 Trademark Law. Another key issue is the prevention of bad-faith registration. It is regulated in the 2019 Trade - mark Law, which stipulates that no application for trade mark registration may infringe upon the existing prior rights of others, and that bad-faith registrations by illicit means of a trade mark with a certain reputa - tion, already used by another party, will be prohibited. Artificial Intelligence As for artificial intelligence with respect to copyright law, in a judgment issued by the Beijing Internet Court in November 2023, the court determined that the plaintiff had copyright over a disputed image which was generated by the plaintiff using AI. The court con - sidered that, based on the criteria for a “work” under the Copyright Law, the disputed image exhibited the plaintiff’s original intellectual input and was recog - nised as a work, with the related copyright belong - ing to the plaintiff. The judgment also emphasised that whether content generated using AI constitutes a work requires case-by-case assessment and can - not be generalised. The court was of the view that the Copyright Law only protects “creations by natural persons” and that AI models cannot be considered “authors” under the Chinese Copyright Law. The judg - ment further confirmed that, in general, the rights to images generated using AI belong to the person uti - lising the AI software. Additionally, the case empha - sised that relevant parties should indicate the use of AI technology or models they employ for the creation of an image.
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