China Law Insight : China Law Insight: China Commercial and Intellectual Property Lawyers and Attorneys, Full Service Law Firm: King & Wood

Australia has had a range of general and sector-specific privacy laws for 20 years. At the Federal level, the Privacy Act 1988 (Cth) initially regulated the way in which Commonwealth agencies dealt with the personal information of Australians. The scope of the Privacy Act was expanded to also cover the handling of individuals' credit information and, more broadly in 2001, to cover all private sector organisations and the way in which they collect, use and disclose personal information. Individual States and Territories of Australia also have specific privacy laws that regulate the way State-based agencies deal with personal information, and laws relating to privacy are also found in a variety of legislative contexts.

The result is that Australia has a myriad of privacy-related laws at different levels of Australian Government covering an often overlapping range of issues. This situation was one of the drivers behind a substantive review by the Australian Law Reform Commission (ALRC) into Australia's privacy laws.
 

By Michelle Rowland, Sarah Alderson of the Communications & Technology Group of Gilbert + Tobin.
 

Kalley Chen, Dai Chen and Xu Zifeng, of King & Wood.

King & Wood established a strategic alliance with Gilbert + Tobin in November 2007.

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According to the fundamental principles of Chinese courts concerning software resale, the resalability of software under different sales models may also be different.

A. Traditional sales model

Under the traditional model, the supplier sells to their clients a CD-Rom or floppy disk containing the software and enters into an agreement with the clients on the scope of license.

This model involves three relationships:

1) The transfer of ownership of the medium carrying the software ;

2) The transfer of the copy of the software; and

3) The licensing of copyright.

 

Among these issues, the transfer of ownership of the hard copy is subject to property law, while the transfer of the copies of the software falls into the category of exercising the distribution right by the right owners under the Copyright Law, and the licensing of the copyrighted software relates to the defined licensing relationship between the copyright owner and the user under the Copyright Law.

As the sale of software sold under the said model is completed by transferring of the ownership of the medium containing the software, the doctrine of exhaustion of rights is applicable to this model. In practice, software can be resold without the consent of the copyright holder.

Xu Jing, Partner and Zhao Ye, Associate, IP Litigation

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In recent years, second hand trading of software has experienced substantial growth and the legal issues involved in such transactions have also caught the eyes of the players in the industry. Generally, the legality of software resale is decided by whether the distribution rights of the copyright owners are exhausted upon the transaction. However, it is difficult to decide when a transaction should be regarded as "licensing" and when the transaction should be deemed as a "sale". As the number of software resale cases brought before the courts increases, the courts' understanding of the nature of software trading develops. Various jurisdictions have formed their own approach on differentiating an act of sale from that of licensing.

Common copyrighted products such as books or CDs can be resold because most countries adapt the "doctrine of exhaustion of distribution rights" in their copyright law, namely once a copyright owner publicly distributes his/her original work or the copies of such work by way of "sale" or "gifting", the distribution right will be deemed exhausted and the owner may not reclaim such right.

Xu Jing, Partner and Zhao Ye, Associate, IP Litigation

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In recent years, search engine providers, P2P website or other Internet service providers are often challenged in the courts by content owners. While the legal actions brought by international record companies are constant headaches for major Chinese search engine providers, including Baidu, Yahoo and Sogou, international search engine giants like Google and YouTube have also been struggling to resolve various lawsuits internationally.

These cases raise the same issues for legislators and judges in all jurisdictions -- how to evaluate the business models of Internet Service Providers or Online Service Providers ("ISPs" or "OSPs", collectively "ISPs") and the responsibilities and obligations for copyright protection of the ISPs?

In 2007, the US Ninth Circuit Court of the State of California rendered its judgment for Perfect 10, Inc. v. CCBill LLC. The California Court granted CCBill LLC immunity under the Safe Harbor Principle on the ground that the notice for removal sent by Perfect 10, Inc. failed to provide sufficient information and could not be deemed as effective notice. The intention of the US Congress when adopting the Safe Harbor Principle was to ensure that liabilities are shared fairly between the parties by requiring the copyright owner to bear the burden of proving the existence of infringement.  These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. The California Court's decision has been interpreted by US legal professionals as another affirmation of the application of "Safe Harbor Principle" to ISPs.
 

He Wei, Partner and Wang Yaxi, Associate, Intellectual Property

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