• Hu Yong: Can we tolerate Baidu's "evil" stand on IP rights?


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    Hu Yong, a media professor at Peking University, wrote about the recent "Baidu Books" issue.



    Peking University, Mar. 25, 2011: In 2009, the Google Books Project was collectively condemned by Chinese writers for the unauthorized scanning of Chinese works. Representing the "victimized" writers, the China Written Works Copyright Society held three separate discussions with Google. Google issued a formal apology and proposed a mediation scheme in which it would pay 60 dollars per work, and provide writers with 63 percent of revenues from online readings of the works.

    This whole affair prompted an uproar in Chinese literary circles. Many pointed fingers at Google's "Do not evil" policy, asking whether breaching copyright was good or evil. But at the time, no one applied the same logic or gave any thought to the greater evil at work behind this question. That's right. I'm talking of course about China's leading search engine, which vanquished Google on the domestic market. I'm talking about Baidu.

    On World Consumer Right Day earlier this month, March 15, Baidu's "evil" finally detonated among copyright holders in China. The China Recording Industry Committee of the China Audio-Video Association and a group of prominent artists independently issued two letter lodging their protests – "Open Letter of Opposition to Baidu" and "March 15 Letter by Chinese Writers Opposing Baidu".

    Both documents pointed fingers at Baidu Books, the search engine's library service, accusing it of violating the rights of musicians and writers. The "March 15 Letter by Chinese Writers," written by the hand of author Murong Xuecun, said: "They [Baidu] have stolen our works away. They have stolen our rights away. They have stolen our property. Baidu Books has become a market for stolen goods."

    What is Baidu Books? According to its official introduction, it is a platform built and operated by Baidu.com Inc, allowing web users to browse and download documents and other materials from a variety of sources. By uploading files, you can accumulate points that you can then apply for the downloading of materials you need yourself. Owing to this feature, Baidu Books has developed rapidly, and there are now close to 200 million
    different books and other materials available. A great many of these are materials whose distribution through the platform is not authorized by authors or publishing houses.

    The China Written Works Copyright Society now recognizes that Baidu's evil surpasses that of Google by a factor of one-hundred. "After rights violations by Baidu Books occurred, they might at least have come out with a proposal to resolve the issue, actively negotiating with Chinese copyright holders, but Baidu's attitude throughout has been cold and indifferent. Baidu has seized on the weakness that while China's copyright laws are in place, they are imperfect and incomplete. They are playing a game of words, but have a weak sense of social responsibility. They have also seized on this psychology among Chinese web users that it's great for everything to be free."

    Since last year, there have been many rights actions taken against Baidu Books. But Baidu has invariably applied the "haven principle" in cases of copyright, saying it has no obligation to examine materials uploaded by web users and has no responsibility for rights violations that might occur. The origin of the online "haven principle" lies with the Information Network Transmission Right Protection Ordinance, which took effect on July 1, 2006, and stipulates that when database and search engine providers receive notification of violations by right holders they can avoid the legal obligation of compensating the rights holder simply by disconnecting the online link.

    This is clearly a deliberate shifting of responsibility on Baidu's part. When web users upload mass amounts of materials, can Baidu really claim this is not a situation in which it is "fully aware or should be aware" that copyright violations are happening? Copyright lawyer You Yunting has said, "Baidu Books and Baidu MP3 have both established clear categories or lists for copyrighted materials, which demonstrates that Baidu is cognizant of its violations. Moreover, Baidu is profiting by advertising sold into pages where copyrighted materials are being provided, so this isn't just about gratuitously providing information."

    Article 36 of China's Tort Liability Law stipulates very clearly that: "Where a network service provider knows that a network user is infringing upon a civil right or interest of another person through its network services, and fails to take necessary measures, it shall be jointly and severally liable for any additional harm with the network user."

    China's internet industry is guilty of original sin when it comes to copyright violations, and this extends to major web portals like Sina in their development phase as well as to the damages incurred more recently by the music industry as a result of Baidu MP3. Even while web portals in China are becoming more conscious and attuned to copyright issues, Baidu has ultimately resisted dealing with copyright violations through its MP3 search service, even in the face of repeated legal action. Progressively, Baidu has extended this sort of piracy to other sectors, such as books and online literature.

    Use the Google search engine to search "Baidu" and "right violations" in Chinese and you are returned more than 10 million search results. Of course, one important reason why Baidu has acted so recklessly in its copyright violations is that a massive population has already emerged in China that has accepted and approved of the idea that content should be free. One factor is rooted in a very factual problem, which is that right holders who have seen their rights violated find it difficult to unite in action against these violations. If they are unable to engage in collective bargaining, then the likelihood of victory against Baidu is small.

    Baidu's arrogance is a direct result of its majority control of the industry. At the same time, the government has been remiss in its supervision. Finally, our society as a whole has failed to respect the work that goes into intellectual property, and has failed to respect the value of the creative act. This has helped to fan the fires of copyright violation online.Copyright violation is a long-standing problem, not limited to the internet. The internet has only made piracy more convenient and cost-effective.

    Voices within the industry have finally begun airing their views on Baidu's monopolization of the industry and copyright violation practices. Li Guoqing, the CEO of online retailer Dangdang, announced recently that the site would pull millions of dollars in advertising on Baidu beginning April 1 this year. Baidu is drawing criticism internationally as well. The Japan Book Publisher's Association has voiced its displeasure with copyright violations, and the US Trade Representatives Office put Baidu on its list of international services that aid piracy.

    Addressing this problem at its source, however, will require the awakening of Chinese users to the problem of copyright violation. Chinese internet users have to understand that the failure to protect rights of any kind is a net loss for Chinese society.


    A version of this article appeared in Chinese at Southern Metropolis Daily.



    Extended Reading:

    Beijing Forum 2010Interview with Hu Yong: Liberate the Power of Netizens

    Hu Yong: On the "Surrounding Gaze"



    Edited by: Chen Miaojuan

    Source: China Media Project