(By Albert Chen) On the issue of jurisdiction in online infringement cases, Article 1 of the Supreme People’s Court’s Interpretation on Several Issues Concerning Application of Law in Hearing Network Copyright Disputes Involving Computers (the “Network Dispute Interpretation”) previously stated that:

“Online copyright infringement dispute cases are within the jurisdiction of the court in the place where infringement occurred or the residence of the defendant. The place where infringement occurred includes the place where the network server or computer terminal used to conduct the accused infringement is located. For situations where it is difficult to determine the place where the infringement occurred or the residence of the defendant, the place where the computer terminal or other device that the plaintiff used to discover the infringement is located may be used as the place where the infringement occurred.”

Generally by this article, network infringement cases with foreign elements are heard in the court where the network server or computer terminal that conducted the accused infringement is located. In practice, this makes it difficult for domestic courts to hear cases like this, such as the case involving Apple’s App Store.

On November 26, 2012, however, the Supreme People’s Court promulgated the Regulations on Several Issues on Application of the Law in Civil Cases Concerning the Right of Network Dissemination of Information (the “Information Network Regulations”). The Information Network Regulations allow for jurisdiction to be asserted by Chinese Courts. By Article 15 of the Information Network Regulations:

“Jurisdiction in civil infringement cases in network dissemination rights disputes shall be in the court of the place where the infringement occurred or the court in the place of the residence of the defendant. The place where the infringement occurred includes the place where the network server or computer terminal conducting the infringement is located. When the place where the infringement occurred and the residence of the defendant are difficult to determine or in foreign countries, the place of the computer where the plaintiff discovered the infringement can be taken as the place where the infringement occurred.”

Based on this regulation, which took effect on January 1, 2013, when the terminal of the infringing server is in foreign countries or regions, the court in the place of the terminal used by plaintiff to discover the infringement has jurisdiction.

The implementation of the new law will help Chinese rights holders find legal support when bringing suit against the kind of infringement found in foreign websites like the App Store. The following is our previous article analyzing jurisdiction for Chinese rights holders suing the App Store.

In the post Could Apple Use Objection to Jurisdiction to Prolong the Litigation Period?, we introduced the objection to jurisdiction Apple submitted to the Beijing Second Intermediate Court after it was sued by the China Writers Alliance over downloads in Apple’s App Store. In China, infringement or tort cases shall be brought to the court of the infringement place or the domicile of the defendant. The infringement place may include the place where the infringement takes place or the place where the consequences of the infringement are felt. With regard to network infringement, could the place where the consequence of infringement is felt include any computer terminal? Today, we will introduce the relevant system.

  I. Regulations on Judicial Jurisdiction

Currently, the jurisdiction for network conflicts is mainly decided in accordance with the Civil Procedure Law, the Interpretation on Several Issues Concerning Application of Law in Copyright Disputes Involving Computer Networks (the “Network Copyright Interpretation”), and the Interpretation on Several Issues Concerning Application of Law in Civil Dispute Involving Domain Names (the “Domain Name Interpretation”). The relevant specific clauses are as follows:

Article 29 of the Civil Procedure Law:

“A lawsuit brought for a tortious act shall be under the jurisdiction of the people’s court located in the place where the infringing act took place or where the defendant has his domicile.”

Article 1 of the Network Copyright Interpretation: “A lawsuit brought for the infringement against network copyright shall be under the jurisdiction of the people’s court located in the place where the infringing act took place or where the defendant has his domicile. The place where the infringing act took place shall include the place where the web server or computer terminal used for the infringement is located. When it is difficult to determine where the infringing act took place or where the defendant has his domicile, the location of the computer terminal or other equipment on which the plaintiff discovered the infringing content can act as the place where the infringing act took place.

Paragraph 1 of Article 2 of the Domain Name Interpretation:

“Infringement involving domain names shall be put under the jurisdiction of the intermediate court in the place where the infringing act took place or the domicile of the defendant. When it is difficult to determine where the infringing act took place or where the defendant has his domicile, the location of the computer terminal on which the plaintiff discovered the domain name can serve as the place where the infringing act took place.

The basic principle of jurisdiction comes from the Civil Procedure Law and could cover all cases of network infringement. The Network Copyright Interpretation mainly focuses on the online infringement of copyright, and the Domain Name Interpretation primarily regulates domain name conflicts, which usually include trademark, trade name, name right, and unfair competition disputes.

II. Analysis of the statutory jurisdiction

It could be concluded from the above regulations that the jurisdiction of network infringement cases shall belong to the court in: 1) the place where the infringement occurred or 2) the place where the defendant has his domicile.

The Network Copyright Interpretation further clarifies that “the place where the infringement occurred” is the “where the web server or computer terminal used for the infringement is located.” Although no similar definition is provided in the Domain Name Interpretation, in practice, the aforesaid principle is followed in domain name disputes (including copyright, trademark, and etc.) to determine the place where the infringement occurred. Furthermore, in both interpretations, when there is no legal way to determine the defendant’s domicile or the place of infringement, the location of the computer terminal or other equipment on which the plaintiff discovered the infringing content can be used for jurisdiction.

In fact, in my experience, the above principles are used to find jurisdiction not just for these conflicts but for all online infringements.

In the case of Apple’s App Store described in the beginning of the post, the defendant, Apple, is an American company. Therefore, this infringing behavior also required the use of the jurisdictional rule for cases including foreign elements. According to Article 241 of Civil Procedure Law:

“A lawsuit brought against a defendant who has no domicile in the People’s Republic of China concerning a contract dispute or other disputes over property rights and interests, if the contract is signed or performed within the territory of the People’s Republic of China, or the object of the action is within the territory of the People’s Republic of China, or the defendant has detainable property within the territory of the People’s Republic of China, or the defendant has its representative agency, branch, or business agent within the territory of the People’s Republic of China, may be under the jurisdiction of the people’s court located in the place where the contract is signed or performed, the subject of the action is located, the defendant’s detainable property is located, the infringing act takes place, or the representative agency, branch or business agent is located.”

So, by our judgment, the jurisdiction decision in the case is mainly based on the opinions that Apple has a branch in Beijing and detainable property, like stock equity, within the PRC.

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