Internet Service Providers' Vicarious Liability Versus Regulation of Copyright Infringement in China

Abstract

The relative anonymity of individual subscribers forces copyright owners to increasingly seek to hold Internet Service Providers ('ISP') liable for the misconduct of their subscribers. ISP vicarious liability, however, also has limitations and disadvantages. There is no consensus about the scope of such liability, and ISPs are not in a good position to deter copyright infringement effectively in all contexts. Additionally, because ISP vicarious liability increases the price of Internet access, it may have an inevitable tradeoff between preventing copyright infringement and the market distortions it causes. Potential vicarious liability may drive out law-abiding subscribers as well as copyright infringers. In this situation, regulation of copyright infringement may be an appealing alternative. The purpose of the article is to provide academics and policymakers with a consistent framework for evaluating the relative desirability of ISP liability and regulation of copyright infringement. By taking China as an example, I discuss the four determinants of the framework in detail.

Keywords: ISP liability, regulation, copyright infringment, China