1. The conventional theories concerning the territorial jurisdiction of infringement cases
    Territorial jurisdiction refers to the separation of functions and the extent of the authority among the people’s courts of the same level when they accept the civil cases of first instance in the area under their jurisdiction. The standard for determining first instance jurisdiction is the jurisdiction of the people's court and the subordinate relationship of the case. Therefore, territorial jurisdiction is also called jurisdiction over land or district jurisdiction1. In accordance with the Civil Procedure Law, territorial jurisdiction is divided into ordinary territorial jurisdiction, special jurisdiction and exclusive jurisdiction. 
    Ordinary territorial jurisdiction is determined by the location of the defendant, which decides the court with jurisdiction over the case2. It has stipulated the “plaintiff accommodated to defendant doctrine” (Article 22 of Civil Procedure Law) and it has exceptions (Article 23 of Civil Procedure Law).
    Special jurisdiction determines the competent court for cases according to the location of the object of the litigation or the place of the juridical facts where the legal relationship is created, changed or exterminated3 (Article 24, 26, 27, 28, 29, 30, 31, 32 and 33 of Civil Procedure Law). Article 29 of the Civil Procedure Law contains provisions concerning infringement cases.   
    Exclusive jurisdiction means that some cases, due to their particularities, shall only come under the jurisdiction of the designated people’s court. No other people’s court has the jurisdictional right over the matter4 (Article 34 of Civil Procedure Law).  
Hereafter, we will combine the topics to be studied in this text to separately analyze these three types of jurisdiction. 
    Article 29 of the Civil Procedure Law stipulates that, “Actions against acts of encroachment come under the jurisdiction of the people's court at the place where such acts are committed or at the place where the defendant is domiciled”. Therefore, in infringement cases, ordinary territorial jurisdiction is actually included in the special jurisdiction.
    The general practices for determining the exclusive jurisdiction of other countries is governed by the place of real property, place of port, place of registration and place of inheritance as grounds for jurisdiction. In China, Article 34 of the Civil Procedure Law only provides the regulations for disputes over real property, port operation and inheritance5. It is obvious that none of these stipulations is applicable to the infringement cases concerning a computer network.  
    Through the above analysis, the author deems it necessary to translate the topic of this text into the special jurisdiction involving computer network infringement cases, i.e. the applicability of “locus delicti” and “forum domicilii” in computer network infringement cases.
    In accordance with Article 22 and Article 29 in the Civil Procedure Law (For Trial Implementation) which came into effect on Oct. 1, 1982, “Actions against acts of encroachment come under the jurisdiction of the people's court at the place where such acts are committed; when it finds difficulty in the execution, the actions may come under the jurisdiction of the people's court at the place where the defendant is domiciled”. This law became invalid on April 9 of 1991 when the Civil Procedure Law was promulgated. Through comparison, we can see that the difference between these two laws lies in the fact that the invalid law stipulates the precedence order for “locus delicti” and “forum domicilii”: “locus delicti” is prior to “forum domicilii”; the new law treats these two places as parallel options, without a precedence order as generally agreed. But with this revision of the new law, some scholars hold the view that it is at variance with the general practice of international legislation and the generally accepted theory on civil actions6.   
    As for the topic of this text, “forum domicilii” is not in any way affected by the characteristics of the computer network, and the relevant jurisdiction rule is the same as that under the non-computer network environment7. But “locus delicti”, as affected by the characteristics of a computer network, takes on features completely different from those under the non-computer network environment, which subsequently affects the rules of territorial jurisdiction.

2. Application of “locus delicti” in computer network infringement cases
    It is the general practice for the countries worldwide to apply “locus delicti” to determine the competent court for infringement cases8. Article 28 of the Opinion of the Supreme People’s Court for Some Issues Concerning the Application of Civil Procedure Law of the People’s Republic of China prescribes that “the locus delicti stipulated in Article 29 of Civil Procedure Law is comprised of locus delicti commissi and place where the infringement results.” Some scholars think that this is consistent with the provisions in Germany, France and Taiwan, China. 9 These two places will be separately discussed in the following paragraphs:

(1) Locus delicti commissi
     Locus delicti commissi means the place where the act of encroachment is committed. The “periodic” information dissemination of a computer network determines a separate locus delicti commissi.  
     A common example is the illegitimate uploading of other’s works and its dissemination on the internet. The infringer usually uploads at a computer terminal, or directly on a network server, which are rather few in number. However, the subsequent dissemination is carried out on a network server. In this case, the performance of the infringing acts is divided into two periods, uploading and dissemination, which result in two loci delicti; the locus of the computer terminal where the uploading takes place, and the locus of the network server where the dissemination takes place. 10 When these two loci are coincident, it is easy to determine the court of jurisdiction. But when they are different, what is the solution?
     Some scholars think that locus delicti commissi shall be determined according to the infringer and the devices used for the copying and transmission11. The author agrees with this view in substance, and advocates the establishment of a jurisdiction standard based on sequence: the place of the computer terminal where the uploading takes place is the first in order; and the place of the network server where the dissemination takes place is the second in order; where the place of the first order can be determined, the place of the second order will be ruled out as the place of jurisdiction; where the place in first order is hard to determine, the one in second order will be taken as the place for jurisdiction.
     Some scholars consult cases which have occurred in foreign countries and advocate the “service contact jurisdiction standard”, which deems that once the infringer “contacts” the computer server that stores the digital works of the right owner, the court where this server is located will have jurisdiction. This standard has been applied to determine jurisdiction in the copyright infringement case of Read China vs. Orient Information Service Co., Ltd. of Pingcui District of Yibin City accepted by Haidian District People's Court, Beijing12. In fact, this takes one segment of the infringement process as the locus delicti commissi to determine the jurisdiction. The entire infringing act by the defendant occurs at the computer terminal, so the major locus delicti should be Yibin City13. In the author’s opinion, this standard intends to take the plaintiff’s residence as the ground for territorial jurisdiction, which is a violation of the doctrine of territorial jurisdiction for infringement cases.

(2) Place where the infringement results
     The place where the infringement results is the place where the damages are incurred. Due to the free and extensive computer networks, the place where the infringement results is also characterized by dispersion.
    Take this illegitimate uploading example again. In theory, these works can reach every corner of the globe covered by the computer network, and may be transmitted to all netizens. If all places reachable by these works are taken as the place where the infringement results, all worldwide courts will have jurisdiction. Obviously, this inference comes up against the original intention of establishing the jurisdictional system14, and is groundless.  
    Then, can we make a special restriction on the “place where the infringement results” in cases involving computer network infringement, so that it is adapted to the characteristics of the computer network?
    On this point, the Summary of Forum by the Supreme People’s Court Concerning the IP Adjudications by Some Courts in China (the Summary) (dated on July 20, 1998) says that “it is universally accepted in the meeting that in IP infringement cases, the place where the infringement results shall be understood as the place where the infringement directly occurs. It is not permissible to treat the plaintiff’s residence as the place where the infringement results merely because the plaintiff has suffered damages15.” The author agrees with this viewpoint, and thinks that this is a restriction on the place where the infringement occurs. However, the definition of “direct” in this viewpoint is still unclear. Meanwhile, the author tries to put restrictions on the place where the infringement results.  
    The author thinks that generally speaking, when we study territorial jurisdiction, if the point for deciding the jurisdiction leads to the conclusion that the jurisdiction is the whole scope of law (the scope of a state) or beyond the scope of law (e.g. the whole world), the point is invalid. Then another point should be found as the basis of jurisdiction; otherwise, such circumstances will occur that the conclusion drawn in accordance with the jurisdiction system negates the basis of the jurisdiction system. 
    Through the above analysis, the author will not abstractly disapprove of the possibility that the place where the infringement results is the place of jurisdiction for computer network infringement cases, but be cautious about the specific situations.  
    Usually, only when the place of the result of infringement has a definite and particular connection in the meaning of jurisdiction, i.e. the “convergence”, it can serve as the place for jurisdiction. If in theory, it may point to the whole scope of law (this is not necessarily to be proved in practice, that is, the opponent to the jurisdiction is not required to prove by evidence that all netizens in the scope of law have really contacted the alleged property, but only required to prove the possibility to do it), i.e. it has the “divergence”, so it can not serve as the place of jurisdiction.
    But in special circumstances, if it is hard to find out the place of “convergence”, the place of “divergence” may replace it to determine jurisdiction. That is to say, the place of territorial jurisdiction of cases involving computer network infringement shall have “levels” and “sequences”. The place of “convergence” shall be taken as the first in order, and the place of “divergence” as the second in order. When the first order is applicable, the application of the second order shall be ruled out.
     If we consider the standard set forth in the Summary as “the positive condition for the determination of the place of the result of the infringement”, we may entitle this standard “the negative condition for the determination of the place of the result of the infringement”. The place of the result of the infringement shall both meet these two conditions. Currently we will combine these two conditions to analyze the opinions raised by scholars, and try to advance some more particular standards between these two general restricted conditions.

1) Jurisdiction based on the registration place of domain name
     For the cases concerning snatching of domain names, some judicial departments and lawyers advocate using the registration place of domain name as the basis for determining jurisdiction. In China, since China Internet Network Information Center (CNNIC) exclusively charges the registration of top-level domain names under the “cn” category, this standard results in jurisdiction in the designated court where CNNIC is located. But in fact, this standard is not “the place of the direct result of the infringement”, that is to say, it mismatches the aforementioned “positive condition”, and shall not be regarded as providing guidance for jurisdiction.
    In practice, the circumstances where this basis for jurisdiction is sustained is similar to the “layout-design of integrated circuits” and “new plant varieties”, to which the Supreme People’s Court shall make specific prescriptions in the judicial interpretation. But as for the issue concerned in this text, the Supreme People’s Court does not agree with this standard. 16 
2) Fixed standard or sliding standard
    In the United States, where the computer network first appeared and is most sufficiently developed, courts are advancing the following “fixed standards” without regard to the cases involved: a. Where the defendant constructs a website to create a nationwide market for the purpose of business solicitation and sale, which infringes the principal intellectual property right of the state, the court of this state shall have jurisdiction; b. Where the content of website infringes the trademark right of the plaintiff of this state, and the website is visible to all the citizens of the state, the court of this state shall have jurisdiction; c. Where the maintenance of a website will have minimal conflicts with the state; d. Where it is sufficient to prove that the defendant consciously enjoys the right of business operation in the state by publishing advertisement or providing a toll free telephone number to the consumers on the Internet, which infringes the principal intellectual property right of the state, the court of this state shall have jurisdiction; e. Where the defendant publishes an advertisement on the Internet and is fully aware that all citizens of this state will have access to it, and further, reaches a contract with the citizens of this state, the court of this state shall have jurisdiction; f. Where the defendant intentionally solicits customers on the Internet, tries to get their email address and sets up the personal mailbox for them, so as to send electronic advertisements to them based on their interest or requirement, and such “active solicitation” infringes the plaintiff’s intellectual property right owned by the plaintiff of this state, the court of this state shall have jurisdiction.
     Some other courts hold the view that the above standard misinterprets locus delicti into any place where an infringement internet is visible to the public, and it will cause the court of locus delicti to lose the due jurisdiction over the case. These courts think that whether the court of this state has jurisdiction or not over the infringing act on intellectual property by the defendant from other states, shall refer to the actual operation by the defendant, including the online operation and offline operation. These courts put forward the “sliding standard” that is associated with the case: a. Where the resident from other states infringes the principal intellectual property of this state on the Internet, and that resident contacts the residents of this state by transmitting letters to them intentionally and repeatedly, the court of this state shall have jurisdiction; b. Where the website of the resident from other states is passive (that is only information is provided, but no business activities conducted), and some expressions on the website infringe the principal intellectual property of this state, the court of this state shall not exercise jurisdiction; c. For the cases that lie between the above two case types, the exercise of jurisdiction shall be based on the particular situation, on the premise of reasonable acknowledgement of the business nature of the defendant’s website and the degree of business operation. A majority of courts adopt this standard. 17 
    In the author’s opinion, the “fixed standard” is obviously identical to the “long-arm statute” in characteristics. This is an example admitting “local protectionism” in legislation. Once it is applied in China, conflicts and confusions will endlessly emerge. Compared to this, a “sliding standard” is more rational, although it is too general.
3) Standard of interaction degree
    Someone has divided the interaction degree of websites into six levels: a. The website only displays advertisements through simple and static web pages. No interactive electronic business is involved. Users are only allowed to browse the web pages; b. The website supports a user’s browser. Besides the browsing of web pages, users can also download selected information. Many websites are of this type; c. The website requires users to provide basic data or answer questions, and can supply the information as required by the users. Websites of this type have a relatively high interaction degree; d. The website enables users to purchase or submit the required information. Many fee-charging websites are of this type. The users shall provide an L/C number to the website, or pay for the password before surfing on it; e. The website sells computer programs online. The purchasers shall pay for the password to access the website and buy the required computer program; f. The website provides a platform for users to have online financial exchanges, such as purchase of security or other financial commodities, or fund transfers via the internet. 18    
    It is obvious that such a standard is more explicit and concrete than the “sliding standard”. The author agrees with Mr. Jiang Zhipei’s viewpoint, that under the interaction degrees as specified in the above d, e and f, we may conclude that the court where the plaintiff resides has jurisdiction; while under a, b and c, the court of plaintiff’s residence does not have jurisdiction.

3. Analysis of the relevant judicial interpretation and suggestions on legislation
    There are only two prescriptions so far on territorial jurisdiction for cases involving computer network infringement.
    The first prescription is contained in Article 2 of the Interpretation of the Supreme People’s Court on Some Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving Computer Network Domain Name, which says that “controversies over the infringement of domain names shall be subject to the jurisdiction of the Intermediate People’s Court of locus delicti or forum domicilii. In cases where the locus delicti or forum domicilii is hard to confirm, the place where the computer terminal and other equipment, through which the plaintiff discovers this domain name are located, can be treated as the locus delicti.” (prescription of “domain name”.) 
    The second prescription is in Article 1 of the Interpretation of the Supreme People’s Court on Some Issues Concerning the Application of Law in the Trial of Dispute Cases Involving Computer Network Copyrights, which says that “controversies over infringement of network copyrights shall be subject to the jurisdiction of the People’s Court of locus delicti or forum domicilii. Locus delicti are the places where the network server, computer terminal and other equipment, through which the alleged infringing act is carried out, are located. In case the locus delicti or forum domicilii is hard to confirm, the place where the computer terminal and other equipment, through which the plaintiff discovers this infringement are located can be taken as the locus delicti.” (prescription of “copyright”.) 
     The author concludes that these two prescriptions are typical examples of territorial jurisdiction over computer network infringement cases; the prescription of “copyright” is an advance over the prescription of “domain name”; while the prescription for territorial jurisdiction over computer network infringement cases is still to be perfected.
     The prescription for “domain name” reiterates the rules of territorial jurisdiction over infringement cases stipulated in the Civil Procedure Law, and stipulates the sequence of places with jurisdiction.19 For the prescription of “copyrights”, besides these stipulations, there are additionally enumerated types of “locus delicti”, which are in fact types of “locus delicti commissi”. “Included” is used here, rather than “means”, which seems to show that the “legislature”20 is not willing to merely include “locus delicti commissi” in the first sequence that collides with the Civil Procedure Law currently in force. Types of cases concerning computer network infringement are numerous. The above two prescriptions are only confined to two parts of intellectual property rights, with too limited an application range. Furthermore, separately making prescriptions for territorial jurisdiction over computer network infringement cases based on such a brief case is troublesome, repetitive, and rather unscientific with respect to the legislative technique. Thus it is recommended that a unified prescription be made in the judicial interpretation of the Civil Procedure Law.
About the author: Feng Gang, Beijing No.2 Intermediate People’s Court

Endnotes:

1 Liang Shuwen, Hui Huming, Yang Rongxin: New Interpretation of Civil Procedure Law and the Associated Prescriptions, Court Press, first edition, October 1996, Page 61.
2 Cai Fabang: Science of China Civil Procedure Law, Publishing House of China People’s Public Security University, first edition, May 1992, Page 143. 
3 Cai Fabang: Science of China Civil Procedure Law, Publishing House of China People’s Public Security University, first edition, May 1992, Page 146.
4 Cai Fabang: Science of China Civil Procedure Law, Publishing House of China People’s Public Security University, first edition, May 1992, Page 151.
5 For the differentiation and review of general rules of legislation in terms of exclusive jurisdiction between China and other countries in the world, refer to Huang Chuan: Study of Jurisdiction over Civil Actions – System, Cases and Problems, China Legal System Publishing House, first edition, October 2001, Page 159-165
6 Zhang Wusheng: Revision of Civil Procedure Law on Special Jurisdiction System, published on Law Science Magazine, volume 1, 1994
7 Details are in Liang Shuwen, Hui Huming, Yang Rongxin: New Interpretation of Civil Procedure Law and the Associated Prescriptions, Court Press, first edition, October 1996, Page 59-69.
8 See also Article 32 of German Civil Procedure Law, Article 46 of French Civil Procedure Law and Article 5 (9) of Japanese Civil Procedure Law.
9 Huang Chuan: Study of Jurisdiction over Civil Actions – System, Cases and Problems, China Legal System Publishing House, first edition, October 2001, Page 141 – 142. The book holds the views that the locus delicti stipulated in the Japanese Civil Procedure Law also refers to locus delicti commissi and place the infringement results. But in fact, Article 5 (9) of the Japanese Civil Procedure Law only prescribes “locus delicti commissi”. See New Civil Procedure Law of Japan, translated by Bai Luxuan, China Legal System Publishing House, first edition, May 2000, Page 34.
10 This is not uncommon in practice. The author thinks that the reason is that at present, the network service companies and netizens of China are relatively concentrated in some central cities. 
11 Jiang Zhipei, Kong Jia, Alamus: Internet and Electronic Commerce Law, Law Press, first edition, May 2001, Page 237.
12 Case details of the first and second instance and their comments are seen in Zhu Jiaxian, Su Haopeng: Sinolaw – Online Dispute, Legislation and Judicature, China Economy Publishing House, first edition, September 2000, Page 354 – 356.
13 Jiang Zhipei, Kong Jia, Alamus: Internet and Electronic Commerce Law, Law Press, first edition, May 2001, Page 238.
14 The significance of the establishment of a jurisdiction system for civil actions may be seen in Huang Chuan: Study of Jurisdiction over Civil Actions – System, Cases and Problems, China Legal System Publishing House, first edition, October 2001, Page 22 – 40.
15 IPRs Division of the Supreme People’s Court: The Selected Judicial Documents of Intellectual Property (I), Standards Press of China, first edition, January 1999, Page 75.
16 On this point, refer to Jiang Zhipei, Kong Jia, Alamus: Internet and Electronic Commerce Law, Law Press, first edition, May 2001, Page 238. What’s worth noting is that the Chapter IV of this book on “Jurisdiction over Lawsuits of Network and Electronic Commerce” is written by Mr. Jiang Zhipei, Presiding Judge of the Intellectual Property Division of the Supreme People’s Court (see Page 1-2 of About the Author of this book).
17 Zhang Yurui: IPR on Internet – Lawsuit and Law, Court Press, first edition, November 2000, Page 496 – 497. The relevant cases are seen in page 498 – 520.
18 Eric Schneiderman & Ronald Kornreich, Personal Jurisdiction and Internet Commerce, The New York Law Journal, June 4, 1997.
Quoted from Jiang Zhipei, Kong Jia, Alamus: Internet and Electronic Commerce Law, Law Press, first edition, May 2001, Page 239 – 240.
19 In fact, this item also prescribes the grade jurisdiction. However, it is not within the scope of discussion of this text, and will not be elaborated upon.
20 Strictly speaking, according to Legislative Law, judicial interpretation is not a category in China’s legal system. But in practice, especially in the judicial practice, judicial interpretation plays a very important role. The reasons are very complicated, and the result is to be further studied. See Dong Hao: On Judicial Interpretation, China University of Politics and Law Press, first edition, January 1999.

(Translated by Hu Xiaoying)