Excessive Downloading of Electronic Contents – Infringement for the Taking

Issue 30 By Doris Li, China IP,[Copyright]

Recently, the American Chemical Society (ACS) filed a complaint against the National Library of China, alleging that its readers were downloading excessive data from its database during the months from December 2008 to March 2009, and suspended the access rights of some of the Library’s IP addresses. This action received intense media coverage. However, news coverage by no means helped or diminished the phenomenon.

“This excessive downloading thing of our library is just a flash in the pan. It does not occur frequently. This is our first time involved in this ACS event. But, as you know, ‘tall trees catch much wind,’ we get so many media attention. Actually, this phenomenon is very common in academic libraries. I think they have more experiences in dealing with such cases.” said an unnamed official from the National Library.
John Sullivan, chief information officer for ACS stated that “If our monitor finds any infringement like this, it will automatically suspend the suspect’s access right formerly authorized by ACS. This is our last choice, just to ensure information security. We do hope users could manage their systems in the best way.”

Prior to this event, the National Library had never undertaken action to curb such infringements, and explained that, “It was not a problem at all. Therefore our management system did not install any real-time monitoring device to keep an eye on the use of data resources.”

Academic infringements – A worrisome problem

The Internet has become a key source for the collection of information. “The Internet, whilst it keeps offering all kinds of information, is bringing in attempts of illegal acquisition of copyrighted material or information. This has become a headache for the whole world,” says Glenn S. Ruskin, director of the ACS Office of Legislative & Government Affairs.

Although illegal use of data has become a universal problem, excessive downloading is more frequent in China than in other countries, according to database owners. 

It is known that different information providers have different rules about the excessive downloading. Currently, there are no rigid indicators defining the threshold of “excessiveness.” However, it is commonly agreed on by most database owners that “excessive” is defined as “using or downloading at a speed in excess of the normal reading speed.”

On May 21, 2007, users from the Beijing Tongji Hospital downloaded 811 pieces of English literature from the database - Elsevier (Science Direct Onsite) in one hour, and another 657 the following hour. This is obviously in excess of ordinary use.

An excessive downloading black list has also appeared in some library websites. Included in the webpage of Tsinghua University Library, webpage is a “handling of violation”: From October 23-25, 2008, a named postgraduate in the automobile department broke the rule by continually downloading excessive SAE data in a very short time. This action brought the library a warning from the publisher and a suspension of access rights to SAE.

Deputy librarian Yang Yi disclosed that they have received at least a dozen excessive downloading warnings in a year.

Notice – Formalism or a responsibility
Such notices have also appeared on the library webpage of Beijing University. They usually read as follows; “To protect the intellectual property of electronic resources and to maintain the reputation of the university, as well as to guarantee the legitimate rights of all legitimate users, the library calls for all units and individuals to show respect to and observe the rules of electronic resources’ intellectual property.” The notice also lists several “prohibitions”: including using the downloading tool to lot download electronic resources purchased by the library; prohibiting downloading, browsing or searching databases continuously, systematically, intensively or batch-sizably; prohibiting providing the literature downloaded to any extramural person; giving personal network accounts to any extramural person for them to access the university’s electronic resources; and prohibiting the profiting from downloaded literature

Are these provisions working? Are they binding on the excessive downloading? According to the students of Tsinghua University, they are not very familiar with excessive downloading, and usually, they read the notices only after it happens. When they are downloading, the term never enters their minds.

Leading officials from both the National Library and Tsinghua University Library hold the view that people do not intentionally infringe. An official from National Library is quoted to have said: “When readers excessive downloaded the data resources provided by the library, they didn’t mean to infringe, but out of their weak IPR consciousness. That is to say, they themselves didn’t even notice it. But their behavior blocked other people’s access to the data resources.” Yang Yi agrees with him, although she does believe that there are interest-driven infringements: “What we have found or spotted about the excessive downloading are all unintentional doings. I think there are students doing this to gain profit, but they are very few, because if a person wants to do this, he needs not download too much information within a period of time, but simply downloads them at different times to exchange them all for benefits. In academic schools, excessive downloading usually happens before the exams or holidays - the time pressure, you know.”             

Clients authorized by database owners do release copyright notices. But how are these notices working? Dr. Li Huawei from the Information Management Department of Beijing University put it in this way: “If there is no notice, the authorized clients by database owners are liable for relevant infringements, because they miss-performed their duty. But with the notice, it’s another way. Whether have the readers seen the notice or whether is the notice helpful, it is not their big concern.”   

Infringing – It’s out there for the taking

According to Yang Yi, downloading volume is directly related to the quality of a database. ACS belongs to those with a high utility rate of a certain publication. In addition, if a school is known for a certain subject, it will attract more people to download data from its database. Some highly respected universities, such as “985 Universities” (coming from the “985 Project”, which was initiated on May 4, 1998 when the Ministry of Education, in implementing the “Action Scheme for Invigorating Education Towards the 21st Century”, decided to focus on supporting certain universities to build them into world class institutions); the downloading volume is much greater.

Along with a weak IPR consciousness, Yang Yi pointed out another factor that puts China on the top of the black list: “Excessive downloading seldom occurs in foreign universities. One reason is the strong IPR consciousness of the students there. The other is that most foreign universities are well financially supported and have the right to use these databases. But in China, only some large-sized universities or colleges can afford them. Students from mediocre schools in various cities try using any means to acquire these valuable resources. This also becomes a big reason for the excessive downloading.”  

Armed with this information, we consulted Dr. Li, and were told that “Strongly professional data resources are usually strongly targeted. Audiences are usually graduate students from universities or workers from scientific research institutes. They are well-educated, and. Some even have had their own academic researches or works published. The term copyright is not a new word for them. And for ordinary people, they rarely pay attention to such specialized database. Therefore, absolute ignorance is not firmly grounded. Regarding the scarce resource factor, in Chinese universities and colleges, information is shared between the organs having it and the organs using it; and the transfer can be easily realized. They can also both join in some kinds of alliances, such as China Academic Library & Information System (CALIS) to get access to these resources. Therefore, the excuse of scarce few resource resources is also out of the picture.”    

Dr. Li also suggests that, “to curb excessive downloading infringements, along with technical breakthroughs, IPR training is compulsory. Only when staffs understand what infringement is, can they take measure to stop it.”

(Translated by Hu Xiaoying)

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