CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
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-Commerce Law. If an ISP infringes upon the civil rights or interests of another party through its network, it is responsible for the infringe - ment. In cases where network users utilise the network’s services to commit infringements, the party that has suffered the infringement 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 hold - ers typically need to provide a notice to the ISP or platform operator. This notice should contain specific information about the infringing material and evidence of ownership 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 provide clearer evidence of ownership and expedite the takedown process.
Artificial Intelligence As for artificial intelligence with respect to copy - right laws, in a judgment issued by the Beijing Internet Court in November 2023, the court deter - mined that the plaintiff had copyright over a dis - puted image which was generated by the plain - tiff using AI. The court considered that, based on the criteria for a “work” under the Copyright Law, the disputed image exhibited the plaintiff’s original intellectual input and was recognised as a work, with the related copyright belonging to the plaintiff. The judgment also emphasised that whether content generated using AI constitutes a work requires case-by-case assessment and cannot be generalised. The court was of the view that the Copyright Law only protects “creations by natural persons”, and that AI models can - not be considered “authors” under the Chinese Copyright Law. The judgment further confirmed that, in general, the rights to images generat - ed using AI belong to the person utilising the AI software. Additionally, the case emphasised that relevant parties should indicate the use of AI technology or models they employ for the crea - tion of an image.
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