“Transporters” Behind Safe Harbors:
Foreign Video Copyright in Mainland Chinese Video Platforms

Contents

“Transporters”: “Preachers of Knowledge in the Internet Age”
Who Are They?
The Scale of Content Transporters
The Impact of Content Transporters

The Ground Supporting Content Transporters
Safe Harbors in the Copyright Law of China
Burdensome Costs of Anti-Infringement for Foreign Copyright Owners
Loopholes in China’s Music Copyright Protection

The Pros and Cons of Content Transporters in Terms of Copyright
Unexpected Market Exploitation for Foreign Copyright Owners
Infringement is Infringement

Possible Solutions
Strict Rules and Supervision
Building a New Licensing System
Bilibili’s Legalization Attempt

Bibliography

“Transporters”: “Preachers of Knowledge in the Internet Age”

Who Are They?

Due to the existence of the Great Firewall (GFW, an internet censorship tool adopted by the Chinese government) in mainland China, an online video market consisting of 1 billion users has been isolated from the rest of the world. However, nowadays, a large number of mainland Chinese internet users are piercing the GFW with the aid of VPN (Virtual Private Network), which is defined as illegal and bears the risk of being arrested upon usage. While there is no way to know the exact number of VPN users in mainland China, scattered evidence shows that there are at least 20 to 30 million VPN users in mainland China. This is to say, about 20% of mainland Chinese internet users have access to foreign blocked websites, and 80% of them do not.

This information asymmetry creates a huge chance of benefiting, whether the benefits being money or gratification, for VPN users. Some of them simply download videos from foreign websites like YouTube and reupload them to mainland Chinese video platforms, with or without permissions from the video owners, credit and source information, and Chinese subtitles. Some of them work voluntarily out of their belief and passion in contributing to the flow of knowledge and art, and some of them work to earn profit from donation and advertisement. In China, they are called “transporters” (搬运工), the workers who move goods from one site to another. Due to the lack of related research, there is no commonly agreed translation of this term. In this essay, I tend to call them “content transporters” to show the essence of their job.

All mainland Chinese video platforms know the existence of content transporters for sure, but not surprisingly, most of them choose to leave the content in their servers to attract more users. After a one by one examination, my finding is that apart from Youku, a former top Chinese video platform which took serious action against content transporting, all other popular platforms allow users to upload transported videos with text notices demanding uploaders to upload only their own videos, which is obviously not that effective.

The Scale of Content Transporters

Content transporters have been importing millions of foreign videos to mainland Chinese video platforms. There is no available research concerning the scale of content transporters, so to show the astonishing scale of content transportation, I use the “search within site” function (type “site:domain+‘keyword’” in search bar) of Google Video Search or directly search within the website of video platforms to obtain the rough number of videos transported from YouTube with credit or source information attached. The keywords I use are: “YouTube搬运” (transported from YouTube), “油管搬运” (same as the previous one but having “YouTube” replaced by a Chinese homophone), “YouTube.com” and “you.tube” on the top 3 online video platforms in mainland China. Short video platforms not included. The results are as follow:

Video Platforms	Number of Results Returned by Keyword “YouTube搬运”	Number of Results Returned by Keyword “油管搬运”	Number of Results Returned by Keyword “youtube.com”	Number of Results Returned by Keyword “you.tube”	Average Monthly Active Users
Tencent Video	5,850	6,910	148,000	7140	430 million
iQiyi	41,700	60,300	61,800	28,500	570 million
Bilibili	1,350,000	2,010,000	4,500,000	35,200	315 million

As far as this simple research, it is clear that Bilibili, widely known as “China’s YouTube”, has imported the largest amount of YouTube videos by its users. However, it is important to notice that the numbers in this table only include the videos transported from YouTube with credit and source information attached in their titles or description, and it is impossible to know even a vague number about how many videos were transported without source information and from other foreign video platforms.

To obtain an estimated number of pirated videos on Chinese video platforms, we need a factor that represents the multiplicative relationship between: a. the number of videos with source information on Bilibili, and b. the number of videos with and without source information on all Chinese video platforms. Let’s call it “Factor P” for now.

First, I personally conducted a survey on 1062 pirated videos across five Chinese video websites, of which 852 videos lack source information. Based on the Law of Large Numbers, we can essentially ascertain that unsourced pirated video is 4 times the sourced ones.  

Due to the fact that almost all Chinese video platforms do not provide an accurate third-party searching feature, plus they do not provide the total number of their videos hosted, we can do nothing but to guess the total number of pirated videos by choosing one platform as an average reference. Let’s assume that the total video amount is relative to the user amount across platforms. According to a business report (https://zhuanlan.zhihu.com/p/629638015), Bilibili’s user base accounts for 21% of China’s online video market.

This is to say, our Factor P is 4*5=20. So, we multiply the statistics we get from Bilibili by 20 to estimate the total number of pirated videos across all Chinese video platforms. This takes us to the number 157.4 million. Given the fact that more than 13 million videos are being uploaded to Bilibili each month, I am not surprised at all by this number. The number is certainly not accurate, but it still gives us a concept about the massive scale of video transportation.

The Impact of Content Transporters

Few mainland Chinese people are satisfied with 100% locally produced media content and licensed foreign content, because they are not allowed to see scenes or hear lyrics involving sex, tattoos, smoking, dyed hair, ear studs, LGBTQ, violence, and any religious or political expression in such censored content. This means that Chinese content producers have to dance with shackles to not touch the ever-changing while unpredictable “redline” set by the Chinese government, and almost every world-renowned audiovisual work is banned. To break the content censorship, people have to rely on content transporters who import content, at least before they are censored completely. This is why a certain type of content transporters, “subtitle groups” (字幕组), who voluntarily transport content with self-made Chinese subtitles, are highly acclaimed in China.

In 2011, when China’s political vibe was not that conservative and stifling, people.com.cn, the most famous state-affiliated media of China, even reposted an editorial claiming that a subtitle group is “the preacher of knowledge in the internet age”. Ten years later, when the same subtitle group was shut down and the founder was sentenced over 3 years of jail time for copyright infringement, there was a national sensation commemorating their contributions.

For the average content transporters on Chinese video platforms, they are acting as efficient content filters along with the platforms. Of course, all the videos transported are reviewed before publication by reviewers hired by platforms to make sure that they are “safe”. By passing the duty of censoring to video platforms and users, the Chinese government saves a huge amount of cost in internet censorship. On the other hand, with content transporters, average mainland Chinese internet users are given access to some of the content made in the foreign world.

The Ground Supporting Content Transporters

Safe Harbors in the Copyright Law of China

In the Digital Millennium Copyright Act passed in 1998, a new set of rules designed for Internet Service Providers (ISPs), which is commonly referred to as “safe harbor”, were established in section 512. The basic principles are: 

The DMCA creates a notice and takedown procedure, allowing a copyright owner to submit a notice of claimed infringement to the service provider’s designated agent. If the service provider promptly removes or blocks access to the material identified in the notice after receiving it, the service provider will be exempt from monetary liability. The service provider will also be protected against liability to any person due to its having taken down the material, provided that it notifies the subscriber that it has removed or disabled access to the material. The subscriber can then file a counter notice including a statement that the material was removed or disabled through mistake or misidentification. It is then up to the copyright owner to file an action seeking a court order against the subscriber. If the copyright owner neglects to do so, the service provider must put the material back up within 10–14 business days after receiving the counter notice.

The same principles are also applied by the Chinese law system. Before the adoption of the Civil Code of the People’s Republic of China in 2020, rather than being described thoroughly in one section of copyright law, the Chinese version of safe harbor is established by three laws combined: Article 14 to Article 17 of the 2006 Regulation on the Protection of the Right to Network Dissemination of Information, Article 36 of the 2009 Tort Law of the People’s Republic of China, and Article 42, 43 of the 2018 E-commerce Law of the People’s Republic of China. In the 2020 Civil Code of the People’s Republic of China, safe harbor rules are expressed in a more unified and systematic way, improving the whole concept of the Chinese version of safe harbor.

In terms of music copyright protection, the safe harbor principles adopted by the U.S. and China are almost identical. The procedure of notice and take down – counter notice – following legal action choices are shared by the two countries.

In such a context, all Chinese video platforms and most of the content transporters are free from any pressure of being sued. Upon being noticed of any infringing video material, all the video platform needs to do is to simply take down the content. What is more, all Chinese video platforms have the warning text like “do not upload any content that is not yours”. All content transporters just know what they are doing, so they would not submit any counter notice. For those content that have not yet received any take down notice from the copyright owner, they just continue to exist.

Burdensome Costs of Anti-Infringement for Foreign Copyright Owners

 Apparently, not many artists or music publishers are willing to, or have the ability to send notice to Chinese video platforms. It is difficult for them to even know the fact that their contents are being transported, let alone to take action against it.

Although UMG and Sony Music Publishing have their branches in China so that they can hire staff to send notice to Chinese video platforms, still, it is not realistic to search for every artist they assign. All they can do is to focus on top artists like Justin Bieber and Billie Eilish, rather than paying unimaginable attention to all their artists.

To make things worse, some transported content are not marked with source content, and a small portion of them even hide the names of artists or events and are shared by private links only, to prevent from being taken down. 

Loopholes in China’s Music Copyright Protection

As a member of Center for International Security and Cooperation (CISAC), the Music Copyright Society of China (MCSC) functions as the only Performance Rights Organization (PRO), at least theoretically. A set of seemingly systematic and thoroughful regulations can be found on its website, including rules about protecting, licensing and paying for artists’ performance rights and mechanical production rights. On its main page, it is claimed that MCSC has 10,633 members, 408 million CNY annual income, 70+ cooperating foreign societies, and managing 14+ million musical works. In its list of “Sister Societies”, ARMR, ASCAP, BMI and SESAC can all be found.

So technically, all artists registered in these PROs can obtain performance royalties from the Chinese online video platforms. However, unlike YouTube, who can not help to tell the whole world that they spaid the music industry 4 billion dollars in 2020, both Tencent Video and Bilibili did not mention any royalty payment or anything about music content copyright in their financial reports.

Furthermore, I searched the Top Ten Most Popular Songs of the Year (2020) awarded by the 2nd Tencent Music Entertainment Awards in the “managed works index” of MCSC, and the results were shocking: none of them was registered.

As there is no copyright information and management system like the one adopted by YouTube in Chinese video platforms, all the artists behind the top ten songs are not collecting performance royalties from video viewing. Following this, I think it is safe to say that foreign artists, at least most of them, are not collecting any income from their videos transported into Chinese video platforms.

The Pros and Cons of Content Transporters in Terms of Copyright

Unexpected Market Exploitation for Foreign Copyright Owners

Are there any advantages for content owners in the massive content transportation in Chinese video platforms? I think the answer is yes. As mentioned above, the GFW was meant to cut the mainland Chinese internet completely from the rest of the world, and I guess that the Chinese government did not expect anything like massive content transportation. So, we have to admit that to some extent, content transporters are doing market exploitation for the copyright owners of the videos they transported. As YouTube is blocked in China, every YouTuber is not considering the Chinese market when uploading their videos. But with the “help” of content transporters, a brand new market is opened without their notice.

I myself experienced two perfect examples. In 2019, I noticed that a video of a German pianist, Oskar Jezior, playing a famous Chinese pop ballad was transported to Bilibili and Wibo (China’s version of twitter), gained about 500,000 views, but the source YouTube video had only 2,000 views. I commented on the source YouTube video to inform the YouTuber of the fact that he was becoming popular on Bilibili, and recommended him to try to develop on Chinese video platforms. He did, and as of this writing, he has accumulated 1.22 million subscribers and 1374 donors on Bilibili. A similar history is repeated in the case of another German pianist, YouTuber Animenz, who is now much more popular on Bilibili than on YouTube. These two pianists serve as a proof that content transporters can act as Chinese market exploiter for some YouTubers.

Infringement is Infringement

But after all, most of the content transporters are infringing, although a large fraction of them do not think so. The common misconception of fair use which deems uses of copyrighted content with credit information is not copyright infringement, is also very common in China. As mentioned above, almost all videos transported to Bilibili have credit information, and Bilibili even provides an option of “reposted content” and a blank for transporters to mark the source when uploading a video. But as a matter of fact, all the transportation actions without the copyright owner’s permission is copyright infringement according to copyright law of both the U.S. and China. If all the transported music videos were licensed and the MCSC functioned well, foreign content owners would have collected a huge amount of performance royalties from Chinese video platforms. Furthermore, as users do not have to watch advertisements on Bilibili when watching a video, the videos transported to Bilibili constitute a replacement for source YouTube videos, thus damaging content owner’s income.

Possible Solutions

Strict Rules and Supervision

So, what can we do to fix the mammoth gray zone? One solution would be applying strict content removal and supervision policies, as Youku, the former top Chinese video platform did. They tried their best to remove all transported videos, and denied all future transportations. This can solve the copyright infringement effectively, but of course, platforms like Bilibili are not willing to give up the content that are attracting a huge amount of users. More realistic measure would be to try to legalize the present content, and pay the copyright owners.

Building a New Licensing System

Zhihu, China’s Quora, updated a function called “apply for reposting” in 2016. When writing answers, writers can choose between options like “no reposting”, “free to repost”, and “repost under application only”. If the last option is chosen, then the writers can set a certain amount of money charged for reposting, then viewers can see a “apply for reposting” option below the answer, and tap to pay for reposting. In my opinion, foreign video platforms can set a similar function to provide a method of authorization for transporters. To support this system, several further conditions are needed:

1. Transporters need to be regulated. Users or staff can apply or be designated to become verified transporters, record their costs paid to be authorized to transport the source videos, and get paid by Chinese video platforms.
2. A legal way to transport the video file from the source site to Chinese video platforms should be established, which requires cooperation between Chinese and foreign video platforms.
3. A copyright information system should be built for Chinese video platforms to track and pay for content owner’s performance royalties.

Bilibili’s Legalization Attempt

Unfortunately, there is no statistic available to know how many foreign video creators have created their account on Bilibili, but it is impossible for users to ignore the effort put in by Bilibili inviting foreign YouTubers to do so in recent years. All kinds of foreign influencers are having their official Bilibili account and uploading their videos in the name of themselves, in which music YouTubers are taking a big proportion. Such a strategy is absolutely helping to improve the copyright environment of the site and replacing some content transportation by the official ones, but it is not able to prevent the less popular ones, which makes the largest proportion of videos transported, from being transported. Will Bilibili remove all transported videos after accumulating a certain amount of official foreign video uploaders? As Bilibili was found to be conducting contributory infringement by the Beijing Internet Court in 2020, it may serve as a feasible solution in the future.

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