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Comment

Deep linking does not constitute a “Making

Available to the Public”: The perspective of
Beijing Intellectual Property Court

Yong Wan *
Law School, Renmin University of China, Beijing, China

A B S T R A C T

Keywords: It has long been a highly controversial issue as to whether deep linking constitutes a making
Deep linking available to the public. Chinese courts have two main ways of interpreting this: the server
Making available right test and the substantive substitution test. Beijing Intellectual Property Court adopted the
WIPO Internet Treaties server test and ruled that deep linking does not constitute a making available in the recent
Chinese Copyright Law landmark decision: Tencent case. The court also stated that deep linking might involve joint
copyright infringement, unfair competition or circumvention of technological measures.
© 2017 Yong Wan. Published by Elsevier Ltd. All rights reserved.

1. Introduction
The legal status of hyperlinks has been a widely discussed
subject in recent years.1 In the European Union (EU), there have
been several cases before the Court of Justice of the EU (CJEU)
on the interpretation of the right of communication to the public
in relation to hyperlinks. The court’s decisions sparked a fierce
debate among academia.
The CJEU first encountered a case that dealt directly with
the question of whether the provision of a hyperlink amounts
to “communication to the public” in 2014, in Svensson v.
Retriever Sverige AB.2 The CJEU set out two requirements for the
concept of communication to the public: (1) an act of com-
munication and (2) the communication of the work to the
public. If an initial communication and a secondary commu-
nication are made by the same technical means, additional
criteria are needed: the secondary communication must be di-
rected at a “new public”. In this case, “the public targeted by
the initial communication” included all Internet users, since
the works on the site are freely available.3 In this regard, the
provision of a clickable link could not expand the group of re-
cipients, and there is no new public. Finally, the CJEU held that
the provision on one website of a link to another website, where

* School of Law, Renmin University of China, Beijing 100872, China.

E-mail address: wanyong@ruc.edu.cn.
1
Johan Axhamn, ‘Striking a Fair Balance Between the Protection of Creative Content and the Need to Foster Its Dissemination: The
Challenges Posed by Internet Linking and Meta Search Engines’, in Tanel Kerikmae (ed), Regulating eTechnologies in the European Union:
Normative Realities and Trends (Springer 2014) 104.
2
Nils Svensson, Sten Sj gren, Madel Sahlman, Pia Gadd v. Retriever Sverige AB (Case C-466/12).
3
Ibid., para. 24–26.
https://doi.org/10.1016/j.clsr.2017.05.013
0267-3649/© 2017 Yong Wan. Published by Elsevier Ltd. All rights reserved.
 computer law & security review 33 (2017) 876–883
a copyrighted work is freely available, does not constitute “an
act of communication to the public”.4
Later, in the BestWater case, the CJEU held that its deci-
sion in Svensson was also applicable in framing.5 However, in
a recent GS Media case, the CJEU departed from previous case
law, founding that posting hyperlinks to protected works, which
are freely available on another website without the copyright
holder’s consent, could constitute a “communication to the
public”, if the links are either provided for the purpose of fi-
nancial gain, or provided by a person who know or could
reasonably have known the illegal nature of the publication
of those works on the linked website.6
The issue of the status of hyperlinks is also a hot topic in
China. On October 21, 2016, Beijing Intellectual Property Court
released its decision in e-linkway Tech Co. Ltd (Appellant) v.
Tencent, Inc. (Appellee).7 The court reversed the judgment of
Beijing Haidian District Court,8 concluding that deep linking
does not constitute a making available and is consequently
not covered by the right of communication through informa-
tion network.
It should be noted that the term “deep link”, used by Beijing
Intellectual Property Court is a broader term, which includes
embedded link and framed link, excluding simple link.9 As
simple linking contributes to a growth in both traffic and popu-
larity, websites usually do not object to simple linking and
there is no dispute related to simple linking before Chinese
courts.10 On the other hand, deep linking has involved an
ongoing debate because it circumvents the advertising-rich
homepage and may lead to lost revenue.11 In the Tencent case,
Beijing Intellectual Property Court directly addressed whether,
and under what circumstances, deep linking can violate Chinese
Copyright Law.
4
Ibid., para. 32.
5
BestWater International GmbH v. Michael Mebes and Stefan Potsch
(Case C-348/13).
6 14
GS Media BV v. Sanoma Media Netherlands BV and Others (Case
C-160/15).
7 15
e-linkway Technology Co. Ltd., v. Tencent, Inc., No. 143
Jingzhiminzhongzi (Beijing IP Ct. 2016).This judgment by Beijing
Intellectual Property Court is final since the Chinese legal system
in principle permits only one appeal in civil cases. See Article 175
of the Civil Procedure Law of the P. R. China (amended in 2007 and
2012 respectively).
8
Tencent, Inc. v. e-linkway Technology Co. Ltd., No. 40920
Haiminzhichuzi (Beijing Haidian Dist. Ct. 2015).
9
In the view of Beijing Intellectual Property Court, there are two
forms of linking: simple linking, which delivers the public to the
linked website’s homepage; and deep linking, which delivers the
public to a specific piece of web content on a website, rather than
the website’s home page. See e-linkway Technology Co. Ltd., v. Tencent,
Inc., No. 143 Jingzhiminzhongzi (Beijing IP Ct. 2016). For a detailed
explanation of simple link, deep link, embedded link and framed
link, please see Alain Strowel & Nicolas Ide, ‘Liability with Regard
to Hyperlinks’ (2000–2001) 24 Colum.-VLA J. L. & Arts 407–409; Al-
exander Tsoutsanis, Why Copyright and Linking Can Tango (2014)
9 JIPLP 495, 497.
10
See Qian Wang, ‘Lun Tigong Shenceng Lianjie Xingwei De Falv
Dingxing Ji Qi Guizhi’ [‘The Legal Nature and Regulation of Com-
munication through Information Network’] (2016) 10 Faxue 23, 24.
11
Ibid.
877
2. Chinese implementation of the making
available right
China and the EU are contracting parties of the WIPO Inter-
net Treaties:12 the WIPO Copyright Treaty (WCT) and the WIPO
Performances and Phonograms Treaty (WPPT). The EU adopted
the Information Society Directive (hereinafter InfoSoc Directive)13
to implement, inter alia, the making available right. Article 3
(1) of the Directive includes language identical to Article 8 of
the WCT, requiring member states to protect the right of com-
munication to the public, including the making available right;
Article 3 (2) of the Directive aims at implementing Articles 10
and 14 of the WPPT with regard to the making available right
for related rights holders.14 In contrast, China opted for a dif-
ferent statutory implementation approach, using a standalone
right: the right of communication through information network.
2.1. Making available right in the WIPO Internet Treaties
2.1.1. Making available right in the WCT
The WCT is adopted to address the challenges of digital tech-
nological developments, in addition to filling in some of the
gaps in the Berne Convention for the Protection of Literary and
Artistic Works (hereinafter “Berne Convention”).15 In the Berne
Convention, the right of communication to the public is regu-
lated in a fragmented manner, leaving gaps, both as to the
subject matter covered by the right and as to the exclusive rights
conferred.16 To both complement the fragmentary set of pro-
visions on the right of communication to the public under the
Berne Convention, thereby filling certain gaps,17 and to cover
12
Mihály Ficsor, The Law of Copyright and the Internet: The 1996 WIPO
Treaties, their Interpretation and Implementation (OUP 2002) ix.
13
Directive 2001/29/EC of the European Parliament and of the
Council of 22 May 2001 on the harmonisation of certain aspects
of copyright and related rights in the information society, [2001]
OJ L 167/10.
Michel M. Water & Silke von Lewinski, European Copyright Law:
A Commentary (OUP 2010) 980.
Sam Ricketson & Jane C. Ginsburg, International Copyright and
Neighboring Rights: The Berne Convention and Beyond (2nd edn, OUP
2006) 583.
16
In the Berne Convention, only three of the various variants of
right of communication to the public extend to all categories of
works: (1) the right of broadcasting (Article 11bis (1) (i)); (2) the right
of communication to the public by wire of broadcast works and
(3) the right of rebroadcasting of broadcast works (Article 11 bis
(1) (ii)). However, the right of communication to the public by wire
in cable-originated programmes applies only to: (1)literary, musical,
dramatic, and dramatico-musical works, but only as performed or
recited (Article 11(1)(ii), 11ter(1)(ii)); (2) literary and artistic works
to the extent they are adapted into cinematographic (Article 14(1)(ii));
and (3) cinematographic works (Article 14bis (1)). Thus, the text of
literary works (including computer programs) and dramatic, musical
and dramatico-musical text, as well as graphic works and photo-
graphic works remain outside the scope of the right of
communication to the public by wire in cable-originated pro-
grammes. See Ficsor (n12) 494–495; Ricketson & Ginsburg (n15)
717–718.
17
Jörg Reinbothe & Silke von Lewinski, The WIPO Treaties 1996: The
WIPO Copyright Treaty and The WIPO Performance and Phonograms Treaty:
Commentary and Legal Analysis (Butterworths 2002) 104.
878 computer law & security review 33 (2017) 876–883
interactive on-demand acts of communication,18 Article 8 of
the WCT provides that:
. . . authors of literary and artistic works shall enjoy the exclu-
sive right of authorising any communication to the public of their
works, by wire or wireless means, including the making avail-
able to the public of their works in such a way that members of
the public may access these works from a place and at a time
individually chosen by them.
From the adopted text, it is clear that Article 8 includes two
parts. The first part (before “including”) is aimed at supple-
menting the existing provisions of the Berne Convention in
respect of the traditional right of communication to the public,19
and the second part (after “including”) is intended to cover in-
teractive digital transmissions which became an important
means of exploitation of copyrighted material only after the
negotiation of the TRIPs Agreement.20 In the framework of the
WCT, making available is one of the sub-rights of the right of
communication to the public. However, as the WIPO “Inter-
net Treaties” adopt the so-called “umbrella solution”, the making
available right’s relation to the right of communication to the
public under the Internet Treaties has no bearing on the choice
of its systematic classification under national law.21 In other
words, the contracting parties are free to implement the ex-
clusive right to authorise interactive transmissions into the
national law, either as a subset of the right of communica-
tion to the public, as a stand-alone making available right, or
through the combination of different rights.22
The act of making available is completed by merely making
a work available for on-demand transmission without requir-
ing that the actual transmission takes place.23 The technological
means of making the work available are irrelevant, as WCT
Article 8 is expressed in technologically neutral terms to
cover any existing or future technology.24 The making avail-
able right applies only if the works are accessible from a
place and at a time individually chosen by the members of
the public. Obviously, the making available right does not
extend to any other form of “exploitation by way of offering,
at specified times, predetermined programs for reception by
the general public.”25
Neither the Berne Convention nor the WCT contains a
specific definition of “public”, and this term is left to be
interpreted by national law; however, an overly narrow defi-
18
WIPO, Basic Proposal for the Substantive Provisions of the Treaty
on Certain Questions concerning the Protection of Literary and Ar-
tistic Works to be Considered by the Diplomatic Conference
(hereinafter Basic Proposal) (WIPO Doc. CRNR/DC/4, Aug. 1996), note
10.11.
19
Reinbothe & von Lewinski (n18) 107.
20
Ibid. 104.
21
Silke von Lewinski, International Copyright Law and Policy (OUP
2008) 458.
22
United States Copyright Office, ‘The Making Available Right in
the United States: A Report of the Register of Copyrights’ (Febru-
ary 2016) 12 <https://www.copyright.gov/docs/making_available/
making-available-right.pdf> accessed 17 December 2016.
23
Ficsor (n12) 508.
24
Reinbothe & von Lewinski (n17) 109.
25
Ibid.
nition of public is prohibited in order to provide a high level
of protection.26
2.1.2. Making available right in the WPPT
The WPPT reflects the umbrella solution in slightly different
ways from the WCT by providing a separate making available
right for performers in Article 10 and for phonogram produc-
ers in Article 14.27 In other words, in the WPPT, the making
available right (in Articles 10 and 14) is separate from the right
of communication to the public (in Article 15). The reason for
this difference is that performers and phonogram producers
traditionally enjoy a remuneration right, rather than an ex-
clusive right of communication to the public, so the envisaged
exclusive making available right could not be made a part of
a non-existing exclusive right of communication to the public.28
However, the scope of the making available right in the WPPT
is the same as is the scope of that right in the WCT.
2.2. Right of communication through information
network in China
Before the amendment of the Copyright Law in 2001, there
was no definite provision concerning the transmission of
copyrighted works over the Internet. The 1990 Copyright
Law grants authors the right of exploitation and the right to
remuneration:
the right of exploiting one’s work by means of reproduction and
the like (etc.), and the right of authorising others to exploit one’s
work by the above-mentioned means, and receiving remunera-
tion therefore.29
In Wang Meng, et al. v. Beijing Cenpok Intercom Technology Co.,
Ltd., the appeal court – the First Intermediate Court of Beijing
– held that the dissemination of copyrighted works on the In-
ternet may be covered in the expression “and the like”.30 On
November 22, 2000, the Supreme Court of China issued a
26
Reinbothe & von Lewinski (n17) 111.The first paragraph of the
WCT uses the expression “. . .develop and maintain the protec-
tion . . . in a manner as effective and uniform as possible”, which
expresses the wish to establish a high level of protection. See Ficsor
(n12) 412; Reinbothe & von Lewinski (n17) 23.
27
Article 10 of the WPPT states: “[p]erformers shall enjoy the ex-
clusive right of authorizing the making available to the public of
their performances fixed in phonograms, by wire or wireless means,
in such a way that members of the public may access them from
a place and at a time individually chosen by them.” Article 14 of
the WPPT states: [p]roducers of phonograms shall enjoy the ex-
clusive right of authorizing the making available to the public of
their phonograms, by wire or wireless means, in such a way that
members of the public may access them from a place and at a time
individually chosen by them.”
28
von Lewinski (n21).
29
Article 10(5) of 1990 Copyright Law.
30
No. 185 Yizhongzhizhongzi (Beijing 1st Interm. Ct. 1999). For a
detailed discussion of this case, please see Yong Wan, A Modest
Proposal to Amend the Chinese Copyright Law: Introducing a
Concept of Right of Communication to the Public, 55 J. Copyright
Soc’y U.S.A. 603 (2007–2008).
 computer law & security review 33 (2017) 876–883 879

judicial interpretation, which reaffirmed the Wang Meng Obviously, this provision transposes Article 8 (the second
judgement.31 part) of the WCT and Articles 10 and 14 of the WPPT without
The 2001 Copyright Law introduced a concept of “right of any substantive change.
communication through the information network” as one of
exclusive rights enjoyed by authors.32 Article 10 (12) of the Copy-
right law reads:
3. The Tencent case in China
right of communication through the information network, that is,
3.1. Facts
the right of making available to the public of the works, by wire
or by wireless means, in such a way that the public may access
The plaintiff, Tencent Inc. (hereinafter Tencent), operates the
the works at a time and from a place individually chosen by them.
website QQ.com, which is China’s largest portal in Chinese in-
tegrating news, interactive communities, entertainment
Comparing Article 10 (12) of the 2001 Copyright Law with
products (including video-sharing) and widely-used basic
Article 8 of the WCT, we can conclude that although Chinese
services.37 In April, 2013, Tencent signed a contract with Hunan
Copyright Law uses the term “right of communication through
ETV Media Culture Co. Ltd., the copyright owner of the TV series
information network”, instead of the making available right,
“The Palace: The Lost Daughter”, to obtain sole exclusive license
the content of them is de facto the same.33
of the right of communication through information network.
It should be noted that the 2001 Copyright Law34 granted
The license fee is RMB 1 million per episode and the total license
performers the right of communicating performance through
fee is 42 million for 42 episodes. The duration of the license
information network under Article 38 (6) and granted produc-
is 6 years. Later, Tencent granted non-exclusive license of the
ers of sound/video recordings the right of communicating
right of communication through information network to Leshi
sound/video recordings through information network under
Internet Information & Technology Corp. (hereinafter Leshi).
Article 42(2). However, the law does not contain the defini-
The TV series that were the subject of this copyright dispute
tion of these two rights.
were freely available on both the Tencent website and the Leshi
On May 18, 2006, the State Council promulgated Regula-
website.38
tions for the Protection of the Right of Communication through
The defendant, e-linkway Technology Co. Ltd (hereinafter
the Information Network (RPRCIN),35 which provide guidance
e-linkway), operates a video aggregation website, which col-
for courts and governmental agencies to deal more effi-
lects and organizes online videos from various popular video
ciently with issues concerning online communication. RPRCIN
hosting sites, including the Tencent website and the Leshi
includes a provision for the definition of the right of commu-
website.39
nication through the information network:
On June 4, 2014, Tencent filed suit against e-linkway, as-
serting direct copyright infringement. The plaintiff argued that
Right of communication through information network means a
deep links established by the defendant are illegal because they
right of making available to the public works, performances, sound
take users directly to the videos, bypassing advertising and de-
recordings or video recordings, by wire or wireless means, in such
priving the plaintiffs of revenue from the advertisements. The
a way that the public may access them at a time and from a place
plaintiff sought both to prevent the defendant from establish-
individually chosen by them.36
ing deep links to its website and to obtain damages.40

31
See Article 2 of the Interpretation of Several Issues Relating to
Application of Law to Trial of Cases of Dispute over Copyright on
Computer Network (2000).
32
Yuping Duan, ‘Xin Zhuzuoquanfa Guangyu Xinxi Wangluo
Chuanbo Quan De Guiding Yiji Yu Liangge Xin Tiaoyue Zhi Bijiao’
[The Provisions under the New Copyright Law on the Right of Com-
munication through the Information Network and the Comparison
with the Internet Treaties] 48 Zhuzuoquan 51, 51–52 (2001); Hong
Xue, Shuzhi Jishu De Zhishi Chanquan Baohu [Digital Technology and
Intellectual Property Protection] (IP Press 2002) 100.
33
Yuping Duan, ‘Brief Introduction to the New Chinese Copy-
right Law’, in Frank Gotzen (ed), The Future of Intellectual Property
in The Global Market of The Information Society: Who Is Going to Shape
the IPR System in the New Millennium? (Bruylant 2003) 46.
34
Chinese Copyright Law was revised in 2010 again in order to
implement the WTO panel report’s recommendations. The scope
of this revision was limited: only one article was revised and one
article was added, and provisions on exclusive rights remain
unchanged.
35
Article 58 of the 2001 Copyright Law states: “Regulations for the
right of communication through the information network shall be
established separately by the State Council.” RPRCIN was amended
in 2013 with minor changes.
36
RPRCIN, Article 26.
3.2. The decision of the first instance court
To prove copyright direct infringement, a copyright holder must
demonstrate ownership of a valid copyright and violation of
one of the exclusive rights granted under copyright law.41 Even
if a plaintiff makes a prima facie case of direct infringement,
the defendant may avoid liability if it can establish that its use
of the copyrighted material is “free use.”42
Thus, the main legal issues that the Haidian District Court
of Beijing was concerned with were: (1) whether the provi-
sion of deep links to copyrighted works was considered to
infringe the right of communication through information
37
About Tencent, <http://tencent.com.hk/en-us/at/abouttencent
.shtml> accessed 7 January 2017.
38
Tencent (n8).
39
Ibid.
40
Ibid.
41
Qian Wang, Zhishichanquan Fa Jiaocheng [Intellectual Property Law]
(3rd edn, RUC Press 2011) 209–228.
42
Guobin Cui, Zhuzuoquan Fa: Yuanli Yu Anli [Copyright Law: Prin-
ciples and Cases] (PKU Press 2014) 577.
880 computer law & security review 33 (2017) 876–883
network, and (2) whether the defendant’s act was free use under
the Copyright Law.
3.2.1. Exclusive right
In an earlier case regarding the scope of the right of commu-
nication through information network, Beijing Intellectual
Property adopted the server test;43 however, Beijing Haidian Dis-
trict Court refused such a test and held that making available
is not limited to uploading the copyrighted material into the
server. With the advent of technological development, activi-
ties that make copyrighted works available may take many
forms. The right of communication through information
network ought to protect any independent economic exploi-
tation for financial profit; in other words, copyright holders
should be given control over each separate market in which
their works are being used. In this case, the deep links set by
the defendant played a de facto role in “making available” the
videos to the public, with a substantive substitution effect.
However, the defendant did not pay the licence fee to the copy-
right holder. Thus, the defendant infringed the right of
communication through information network under Article 10
(12) of the copyright law.44
3.2.2. Free use
Free use means that a work may be exploited without the
consent of, and without payment of remuneration to, the copy-
right owner, provided that the name of the author and the title
of the work shall be mentioned if they are available and the
other rights enjoyed by the copyright owner by virtue of the
copyright law shall not be prejudiced.45 Article 22 of the Copy-
right Law lists twelve types of free uses. To provide solutions
to the questions raised by Internet technology, the RPRCIN ap-
propriately extend the free uses in Article 22 of the Copyright
Law into the digital environment.46
However, the provision of deep links by an aggregation plat-
form does not fall under any specific category of free uses in
either the Copyright Law or the RPRCIN.47 In addition, the act
of the defendant is of a commercial use, endangers a normal
exploitation of the works in issue, and unreasonably preju-
dices the legitimate interests of the copyright holder. In light
of the purpose of the free use system, the defendant’s act does
not constitute free use.48
43
Tongfang Co. Ltd. v. Hunantv.com Interactive Entertainment Media
Co., Ltd., No. 559 Jingzhiminzhongzi (Beijing IP Ct. 2015). For a de-
tailed interpretation of the server test, please see Part 3.3.1.
44
Tencent (n8).
45
Article 22 of the Copyright Law.
46
RPRCIN, Articles 6 and 7.
47
Tencent (n8).
48
Ibid. The judge who wrote the appeal opinion on Tencent case,
in an earlier case (when the judge worked in the First Intermedi-
ate Court of Beijing), has introduced an innovative test to determine
whether or not an activity is free use, which is a new reading of
the three-step test: “in special cases, use of a copyrighted work
without permission from the copyright holder may be consid-
ered to be free use, if such a use neither conflicts with a normal
exploitation of the work, nor unreasonably prejudice the legiti-
mate interests of the copyright holder”. This is part of the reason
that the trial court explains that the act of the defendant “endan-
gers a normal exploitation of the works in issue, and unreasonably
3.2.3. Summary
Beijing Haidian District Court adopted the so-called “substan-
tive substitution test” and ruled that e-linkway’s unauthorised
provision of deep links to copyrighted videos infringed the right
of communication through information network under Article
10 (12) of the Copyright Law and did not constitute a free use.
As e-linkway had deleted links to the videos in issue, it was
not necessary to order the company to cease acts of copy-
right infringement. e-linkway was ordered to pay damages of
RMB 35,000.
3.3. The decision of the Appeal Court
e-linkway appealed to Beijing Intellectual Property Court,
arguing that it did not upload the videos at issue into servers
and thus there was no act of communication through infor-
mation network. Beijing Intellectual Property Court adopted
the so-called “server test” and reversed the decision of the first
instance court.
3.3.1. Deep-linking does not constitute a making available to
the public
Beijing Intellectual Property Court stated that it had dis-
cussed why it adopted the server test in the Tongfang case,49
and that it would not repeat such discussions in this case.
In the Tongfang case, Beijing Intellectual Property Court
found that the right of communication through information
network under Article 10 (12) of the copyright law is the result
of China’s implementation of the WIPO Copyright Treaty ob-
ligations and that China used the language of the second part
of WCT Article 8, with minor changes, to implement the making
available right.50 This legislative history indicates that the rel-
evant WIPO documents in negotiating the WCT help in
understanding the meaning of the term “making available” in
Article 10 (12) of Chinese Copyright Law. Beijing Intellectual
Property Court then cited a WIPO document as a reliable source
for interpreting the meaning of the making available right:
[w]hat counts is the initial act of making the work available, not
the mere provision of server space, communication connections,
or facilities for the carriage and routing of signals.51
The court found that “the initial act of making the work
available” is the initial placing of the work into the Internet,
e.g., the initial uploading of the work into the server, not the
provision of online storage or access facilities.52 Thus, the server
test shall be the correct test to determine whether an act
prejudices the legitimate interests of the copyright holder.” See Shen
Wang v. Guxiang Info. Tech., Ltd. & Google, Inc., No. 1321
Yizhongminchuzi (Beijing 1st Interm. Ct. 2011).
49
Tongfang (n43).
50
Ibid.
51
WIPO, Basic Proposal for the Substantive Provisions of the Treaty
on Certain Questions Concerning the Protection of Literary and Ar-
tistic Works to be Considered by the Diplomatic Conference, WIPO
Doc. CRNR/DC/4, 30 August 1996, para 10.10.
52
Tongfang (n43).
 computer law & security review 33 (2017) 876–883
constitutes an information network communication/a making
available.53
In the Tencent case, Beijing Intellectual Property Court ex-
plained the server test further, and took a three-tier approach
to make the conclusion that the provision of deep links does
not constitute a making available to the public.
3.3.1.1. Making available requires actual transmission. Beijing
Intellectual Property court reiterated that the statutory text of
the right of communication through information network in
Chinese Copyright Law tracked the language from WCT Article
8.54 As the making available right in the WCT was put under
the umbrella of “the right of communication to the public”, this
means that making available is confined to the notion of com-
munication, presupposing an act of transmission. In fact, only
the transmission makes the user gain actual access to the
work.55
3.3.1.2. Transmission is initial uploading. Beijing Intellectual
Property Court remarked that an act of information network
communication involves a series of acts of transmissions, as
well as acts of reproductions (for instance, storage of a work,
uploading, caching). The initial uploading is the basis and origin
of the other acts. Without initial uploading, other acts are like
“water without a source”, and there is no communication.
Beijing Intellectual Property Court then cited a judicial in-
terpretation of the Supreme Court to support its opinion that
transmission is initial uploading: where works, performances,
sound recordings or video recordings are placed on informa-
tion network through uploading to network servers, establishing
shared files, using file-sharing software or other methods,
thereby enabling the public to download, browse or other-
wise access them at a time and from a place individually chosen
by the public, the courts shall find that this is conducting an
act of making available . . ..56
In addition, the court emphasised that the initial upload-
ing means initial uploading in each independent network
communication, and is not limited to the first uploading.57
Beijing Intellectual Property Court explained that the
hyperlinks, including simple links and deep links, which only
provide the address of the works, do not involve the trans-
mission of the works. Whether the public may access the
work or not depend on the linked website. When the work is
removed from the linked website, even if the link remains
intact, the public cannot access the work; on the other hand,
when the link is removed, and the work remains in the linked
website, the public may still access the work. Such facts
indicate that no hyperlinks may enable the public to access
works, and, consequently, no hyperlinks may satisfy one of
the requirements of the definition of right of communication
53
Ibid.
54
e-linkway (n7).
55
Ibid.
56
Article 3 (2) of the Supreme Court Interpretations on Issues Con-
cerning the Application of Law in the Trial of Civil Cases on the
Infringement of the Right of Communication through Informa-
tion Network (hereinafter Network Judicial Interpretations).
57
e-linkway (n7).
881
through information network: “the public may access the
works . . .”.58
3.3.1.3. Uploading requires server. Beijing Intellectual Prop-
erty Court stated that any initial uploading is the transmission
of the work, and the work transmitted must be first stored on
a “storage medium”. Without a storage medium, the trans-
mission may not happen under current technological
capabilities. Such a storage medium is considered as the “server”
in the server test.59 The court emphasised that the server should
be interpreted in a broad sense to cover any storage medium,
including not only the web server, but also personal com-
puter, mobile phone and so on.60
3.3.2. Deep-linking may involve liability in joint
infringement, circumvention of technological protection
measures or under unfair competition law
Although Beijing Intellectual Property Court held that provi-
sion of deep links (and simple links) does not constitute a
making available, it did not close the door for the copyright
holders to obtain remedies. The court stated that creating deep
links might give rise to the following forms of liability: joint
liability for copyright infringement, unfair competition and cir-
cumvention of technological measures.
3.3.2.1. Joint liability for copyright infringement. Beijing Intel-
lectual Property Court held that the provider of deep links was
likely to be held liable under the doctrine of joint infringe-
ment. The court firstly cited the following provisions:
[o]ne who abets or assists another person in committing a tort
shall be liable jointly and severally with the tortfeasor”;61 “[t]he
courts shall order the network service providers to bear liability
for the infringement where network service providers have abetted
or assisted network users in infringing the right of communica-
tion through information network in the provision of network
services.62
Beijing Intellectual Property Court went on to say that there
could be no joint infringement, without a direct infringe-
ment. In addition, to succeed on a joint infringement claim,
the copyright holder must show that the defendant knew, or
should have known, of the infringing activity. If the copy-
righted material in the linked website is authorised, or the
provider of deep links lacks knowledge of the direct infring-
ing activity, the doctrine of joint infringement cannot reach.63
3.3.2.2. Unfair competition. The provider of a deep link that con-
nects users to the work of the linked site in such a way that
users do not view the advertising presented on the linked site
harms the economic interests of the operator of the linked site,
taking advantage of the work of others without having to bear
the cost. In this regard, deep-linking may be contrary to honest
58
Ibid.
59
Ibid.
60
Ibid.
61
Article 9 (1) of Tort Law of the P. R. China.
62
Network Judicial Interpretations, Article 7(1).
63
e-linkway (n7).
882 computer law & security review 33 (2017) 876–883
practices and constitutes a violation of Article 2 of the Law
Against Unfair Competition:
[a] business operator shall, in his market transaction, follow the
principles of voluntariness, equality, fairness, honesty and cred-
ibility and observe the generally recognised business ethics.64
Beijing Intellectual Property Court asserted that one court
made such a ruling.65
3.3.2.3. Circumvention of technological measures. Chinese Copy-
right Law prohibits “intentionally circumventing or destroying
the technological measures”.66 RPRCIN took a further step, which
extends this illegality to the preparatory acts: either import-
ing, offering to the public any device or part used primarily for
circumventing or sabotaging technological measures, or pro-
viding any technical service designed for circumventing or
sabotaging technological measures.67
Circumvention of TPMs is an independent and separate
cause of action from infringement of any of exclusive rights
(including right of communication through information
network). Generally, as the cost for a video-sharing site is high,
the site usually employs technological measures to prevent
others to establish links to the videos in its website freely. In
such a circumstance, the provider of deep links has to circum-
vent technological measures, and consequently may violate the
copyright law.68
3.3.3. Summary
Beijing Intellectual Property Court stressed the importance of
hyperlinks for the functioning of the Internet. Applying the
server test, the court held that the defendant’s provision of links
did not constitute an act of making available because it did
not store the videos on its servers. The court provided alter-
native approaches – joint infringement, unfair competition and
circumvention of technological measures – for the plaintiff to
resort to remedies. Unfortunately, the plaintiff did not allege
these three causes of action.
4. Comments
Chinese courts have addressed the question of whether liabil-
ity should be imposed for providing deep links to unauthorised
64
Ibid.
65
web.tvfan.cn Network Technology Ltd., v. CCTV International Network
Co., Ltd., No. 3199 Yizhongminzhongzi (Beijing 1st Interm. Ct. 2014).
66
Copyright Law, Article 48(6). Chinese Copyright Law does not
define “technological measures”, which is firstly defined in Regu-
lations for the Protection of the Right of Communication through
Information Network (hereinafter RPRCIN) as: “the technologies,
devices or parts that effectively prevent or restrict the activities
of browsing and reading works, watching performances, enjoying
sound recordings or video recordings, or making available to the
public the material through the information network without the
consent of the right holders.” See RPRCIN, Art. 26 (2).
67
RPRCIN, Article 4.
68
e-linkway (n7).
copyrighted material hosted on third-party websites. In those
cases, the doctrine of joint infringement is used to deal with
the liability of the provider of deep links.69 In contrast, until
recently, with the development of aggregators, the question of
whether the provision of deep links to a website where the work
is being made available with the permission of the copyright
holders is infringement has been raised in several cases before
Chinese courts.
The Tencent case is an important case in this field. The first
instance court – Haidian District Court of Beijing – applied the
“substantive substitution test”, and ruled that deep-linking
qualifies as an act of information network communication/
making available. However, the appeal court – Beijing Intellectual
Property Court – continued the use of the server test, further
upholding the importance of the test in analysis of copyright
direct infringement, concluding that deep-linking does not con-
stitute an act of making available.
It should be noted that neither the first instance court nor
the appeal court discussed the notion of “the public”. In fact,
the right of communication through information network in
Chinese Copyright Law requires two cumulative criteria: (1) an
act of making available copyrighted material, and (2) that copy-
righted material is made available “to the public”. It seems that
both courts take it for granted that the second prong is sat-
isfied, as the communication medium is publicly available
Internet, and the websites in this case are open to any poten-
tial Internet users. Although the public was not interpreted by
the courts, it is obvious that the courts did not accept the
concept of “new public”. In fact, the judge who wrote the appeal
court’s opinion on the Tencent case emphasised in an article
that the public is “a group consisting of a substantial number
of persons outside a normal circle of a family and its social
closest acquaintances”.70
Beijing Intellectual Property Court emphasised that the de-
cisive point should be whether the activity is covered by any
of the exclusive rights granted under the copyright law. The
act of making available is objective facts as the act of repro-
duction, distribution or performance. The determination of
making available should be objectivity and certainty. Thus, it
is irrelevant either whether the link takes the user to specific
content in a way that makes it clear to the user that he/she
has been taken to a third-party website, or whether the linking
site retains a frame around the content, so that the user is not
aware that he/she is accessing the content from a third-
party website. It is also immaterial whether the website is either
available to anyone without any access protection or only avail-
able on a subscription basis or otherwise behind a pay wall.
Such an interpretation is right.
69
See e.g., Beijing Century Yuebo Co., Ltd. v. Warner Music Hong Kong,
Ltd., No. 01301 Gaominzhongzi (Beijing Higher Ct. 2004); Beijing
Alibaba Information Technology Co., Ltd. v. Beijing Alibaba Mercury Records
Ltd., No. 1184 Gaominzhongzi (Beijing Higher Ct. 2007); Zhejiang
Flyasia E-Business Co. Ltd., v. Baidu, Inc., No. 2 Minsanzhongzi (Supreme
Ct. 2009).
70
Songyan Rui, ‘Xinxi Wangluo Chuanbo Quan De Lijie Shiyong
Yu Disanci Zhuzuoquanfa Xiugai’ (‘The Interpretation and Appli-
cation of Right of Communication through Information Network
and The 3 rd Amendment of the Copyright Law’), 1–2 Dianzi
Zhishichanquan 124, 126 (2013).
 computer law & security review 33 (2017) 876–883
However, it seems that Beijing Intellectual Property Court
might misinterpret a phrase of a WIPO document quoted by
it as a basis for interpreting the concept of making available
in the WCT. Such a misinterpretation is in turn the basis for
the court to interpret the meaning of making available in
Chinese Copyright Law. The phrase concerned is:
[w]hat counts is the initial act of making the work available, not
the mere provision of server space, communication connections,
or facilities for the carriage and routing of signals.71
Beijing Intellectual Property Court believed that this phrase
emphasised that only “the initial act of making the work avail-
able” constitutes the act of making available, and the former
is understood as equivalent to the initial act of uploading the
work into a server (placing the work into the Internet); in ad-
dition, the court believed that the provision of links is
comparable to the provision of “communication connections,
or facilities for the carriage and routing of signals”, and, thus,
does not constitute an act of making available. The phrase can
be interpreted in another way.
In fact, the idea expressed in the phrase is finally adopted
as the agreed statement concerning WCT Article 8:72 “. . .mere
provision of physical facilities for enabling or making a
communication does not in itself amount to communica-
tion. . ..” The agreed statement indicates that the exclusion
from the act of communication must be interpreted restric-
tively, as it uses the term “mere”.73 The statement suggests
that providing anything more than physical facilities, such as
providing software for enabling communications, may be
considered as communication.74 The expression “[w]hat counts
is the initial act of making the work available” may be
explained as meaning that simply offering the work may
come within the scope of the making available right (at that
point in time it already needs the authorisation of the
copyright holders) and it is not necessary that the offer be
accepted: “‘making available’ embraces incipient as well as
effected communications.”75 If this approach is right, there
is a weak point in Beijing Intellectual Property Court’s
argument.
71
WIPO Doc. CRNR/DC/4 (n51).
72
Reinbothe & von Lewinski (n17) 112.
73
Ibid.
74
Ricketson & Ginsburg (n15) 745.
75
Ibid 747.
883
5. Conclusion
Obviously, both the server test and the substantive test have
their own pros and cons. The server test is simple and easy
to determine and has been a dominant test in the situation
of deep linking to unauthorised work for a long time. Re-
cently, however, there has been a significant amount of scholarly
opinion that this test could not protect the interests of copy-
right holders and licensees in the face of technological
innovation, especially new aggregating technologies.76 Partly
on the basis of these scholars’ opinions, some courts have
adopted the substantive substitution test.77 The substantive sub-
stitution test considers unlicensed provisions of deep link as
a serious risk to copyright holder’s revenue, enabling the users
to get the same experience as they would if they visited the
linked website. In fact, the right of communication through in-
formation network is essentially a normative concept, which
should be interpreted in accordance with the statutory lan-
guage of the copyright law. However, neither a serious impact
on the economic interests of copyright holders, nor getting ex-
perience, considered by the substantive substitution test, is an
element of the notion of the right of communication through
information network.
Deep linking has been a controversial question for a long
time, and the Chinese courts are still struggling to work out a
solution to balance the interests of the copyright holders, In-
ternet service providers and the public. There is no doubt that
the Tencent case is not the last time that the Chinese courts
will be asked to address the topic.
Acknowledgement
This paper acknowledges the support of the Fundamental Re-
search Funds for the Central Universities and the Research
Funds of Renmin University of China (17XNA002).
76
See e.g., Guobin Cui, ‘Dexingwangyi De Fuwuqi Biaozhun’ [The
Wrong Server Test] 8 Zhishichanquan 3 (2016); Xiangjun Kong,
Wangluo Zhuzuoquan Baohu Falv Linian Yu Caipan Fangfa [Juidicial Phi-
losophy and Legal Methods in Network Copyright Protection] (China
Legal Publishing House) 67–74.
77
See e.g., Leshi Internet Information & Technology Corp., v. Shanghai
Qianshan Internet Development Co., Ltd., No. 44290 Chaominzhichuzi
(Beijing Chaoyang Dist. Ct. 2015); Tencent, Inc. v. e-linkway Technol-
ogy Co. Ltd., No. 40920 Haiminzhichuzi (Beijing Haidian Dist. Ct. 2015).