China’s Top 20 Cases of Copyright
Case 1
Infringement Dispute over Right to Network Dissemination of Information for The Voice of China
Trial Docket: (2016) Jing0107MinChu No. 4684 Appeal Docket: (2017) Jing73MinZhong No. 1258
[Headnotes] Priority is required in assessing compe n s a t o r y dama g e s i n infringement of copyright and neighboring rights as: actual damages of copyright holder over illegal gains by infringer over statutory damages.
When the amount of right holder’s actual damages or the infringer’s illegal gains can be ascertained, discretionary judgment of such actual damages or illegal gains should be assessed for compensatory damages, rather than directly applying statutory damages.
[Synopsis] Appellant (Defendant below): Baofeng Group Co.,Ltd. (BaoFeng) Appellee (Plaintiff below): Tencent Computer Systems Co., Ltd. of Shenzhen (Tencent) Tencent, lawful holder of the exclusive right to Internet disseminationnetwork dissemination of information of The Voice of China (Third Season), a popular uplifting program of musical commentaries made by CanXing Cultural Dissemination Co.,Ltd.of Shanghai (CanXing), claims that BaoFeng, without permission for network dissemination of information, has broadcast episodes 1-6 of the program on its website (www.baofeng.com). Knowing that Tencent has exclusive right of network dissemination of information of the program, BaoFeng nonetheless commits acts of dissemination causing severe injury to Tencent’s legitimate interest. Therefore, it prays for an award of 2 million Yuan in damages comprising 1,990,000 Yuan in economic damages plus reasonable expenses of 10,000 Yuan in litigation cost for each episode.
The trial court is of the opinion that first, by the accreditation at the end of the program, CanXing, being the copyright holder, has issued a letter of exclusive license for network dissemination of information and enforcement of The Voice of China (Third Season) to Tencent, who is entitled to claim for protection of the right of network dissemination of information of the program at issue. BaoFeng, without permission from Tencent, by offering the online broadcast of the program at the client end has engaged in infringement of the network dissemination of information right for the program, and should therefore be liable; that second, the court, being more than convinced by relevant evidence and established facts that the economic damages incurred to Tencent from BaoFeng’s conduct have apparently exceeded the upper limit of statutory damages of 500,000 Yuan prescribed under Copyright Law, assesses the compensatory damages for each episode to be one million yuan, in order to redress the economic loss of the right holder and to punish the intentional infringement; that further, based on the facts of the amount claimed for, the actual appearance of Tencent’s counsels in court, and the submission of multiplicity of notarized documents, Tencent’s request of litigation cost of 10,000 Yuan for each episode is not unreasonable; and therefore sustains the full amount claimed for. In sum, the trial court decrees that BaoFeng pay to Tencent for each episode a total of one million yuan for economic damages, and 10,000 Yuan for reasonable expenses.
After the trial, BaoFeng appealed on the ground that the trial court decision lacks support from both facts and law for the amount of damages, resulting in apparently excessively and unreasonably large amount of economic damages. The appellate court is of the opinion that since the amount of damages is determined by assessment, it can be ascertained that the economic damages to Tencent obviously exceed the upper limit of statutory damages prescribed under Copyright Law, and therefore it is not inappropriate for the trial court, taking into account of various factors, to assess an amount of damages to be one million yuan for each episode. The appellate court dismissed the appeal and affirmed the decision.
[Judge’s Comment] This case relates to application of assessment of damages resulting from infringement of copyright and neighboring rights. In this case the following rules are established, i.e., there is precedence in calculating copyright infringement damages: the first is actual damages of right holders; the second is the illegal gains; and the third is statutory damages. Where a prior precedence is applicable, it excludes the subsequent precedence. The assessment of right holder’s actual damages and the infringer’s illegal gains generally involve multiple variants.
Generally, it is difficult to ascertain the accurate value for all variants, and it is almost impossible to ascertain the accurate value of any variants. If some of the variants can be ascertained for right holder’s actual damages or infringer’s illegal gains, assessment of damages should always be adopted, to determine the right holder’s actual damages or infringer’s illegal gains, rather than applying statutory damages.
Case 2
Dispute Over the Right of Authorship for Kuwo Music Software
Trial Docket: (2017) Jing0108MinChu No. 11811
[Headnotes] Determination of whether a music app software is identified with standardized authorship should be made by referring to industry custom for authorship, as well as to the contents of tunes and lyrics, taking into account necessity, and convenience of identifying authorship.
[Synopsis] Plaintiff: Li Zhi Defendant: Kuwo Technology Co., Ltd. of Beijing (Kuwo) Li Zhi, a musician, wrote lyrics for, composed and performed a large number of songs and published numerous albums. Kuwo provided Li’s music for online listening and download on its “Kuwo Music” PC and mobile clients, some of which failed to identify Li as author and performer. Li contended that Kuwo infringed his right of authorship and network dissemination of information right as lyric writer, composer and performer of visual/audio recordings, and demanded apologies, remorse and economic compensation plus reasonable expenses for the amount of 210,459 Yuan. Kuwo responded by stating that “Kuwo Music” clearly indicated “Li Zhi” in the PC and mobile clients, and did not infringe the personal right under Copyright Law for lyric writers, composers and performers, and refused therefore to apologize. The court, after classifying the identification situations for providing Li Zhi’s name when offering his music at various clients, found that when the songs were offered for download at the PC client of Kuwo, it was not infringement of the right of authorship as the download page indicated such information as names, singers, albums, popularity, music quality, but it was for the downloading of Memories of Zhengzhou when Kuwo listed Li Zhi as a mere Internet singer, without showing him as a performer, thereby infringing his right of performer. For the mobile clients wherein the songs did not carry lyrics, Kuwo did not have to show Li Zhi as lyrics writer; but for those songs that did carry lyrics, some showed Li Zhi in the standardized identification as singer, lyrics writer and composer, but others merely showed “Li Zhin” which was insufficient to show Li’s authorship of lyrics writer and composer, infringing thereby Li’s right of authorship. Therefore the ordered that Kuwo show apology and remorse to Li Zhi, and pay economic damages in the amount of 185,797.5 Yuan plus reasonable expenses of 8,660 Yuan. When neither party appealed the trial court decision became effective.
[Judge’s Comment] The innovative significance of this case lies in that it teaches on how to show authorship of lyrics writers, composers and performers for music app at the different stages of test listening and downloading. Most popular music apps on the market usually have test listening and downloading services. When test listening, a consumer may choose to display the lyrics or not to. The music app software provider does not have to show the authorship for lyrics writers and composers when the lyrics are not displayed without the benefit of showing authorship. For download, the app usually provides a link popup window or downloading indicator, in which process no infringement of authorship may necessarily be found for lack of indication of lyrics writers, composers or performers. Determination of proper identification of authorship for music apps should be made taking into consideration of industry customs of both necessity and convenience.
Case 3
Copyright Dispute in Posters, Snapshots and Screen Captures
Trial Docket: (2017) Jing0105MinChu No. 10028
[Headnotes] Consideration of whether an act constitutes fair use from the origin of fair use regime by applying the tripartite test in conjunction with Article 21 of the Implementing Regulations of Copyright Law by factoring in whether it affects the normal use of the copyrighted work or whether it unreasonably interferes with legitimate copyright.
[Synopsis] Plaintiff: Dongyang Flowers Film and Television Culture Co., LTD.
(Flowers Film) Defendant: Douban.com of Beijing (Douban.com) Flowers Film is the copyright holder of TV series The Obstetrician (the TV series at issue). The “Douban Film” operated by Douban.com is an information-sharing platform for comments and exchange among Internet users. On this platform, an entry under the heading of “Obstetr i c ian/Gynecologist”
displayed information about posters, conductor, script writer, and main actors, in addition to a list of short comments by series, summaries, pictures of the scenes, etc. In the photo section was a display of photos submitted by Internet users for posters, snapshots and screen captures of the TV series. Flowers Film contends that as copyright holder of the TV series it is entitled, but not limited, to the copyright of the series, the screen captures, posters, etc. and requests an injunction, elimination of negative impact, an accounting of damages and reasonable expenses.
The court is of the opinion that none of the snapshots or posters carried names, and Flowers Film may not presumptively claim to be the copyright holder per se for the snapshots and posters simply because it is the copyright holder of the TV series, without showing the manuscripts, original works, or contracts for obtaining the copyrights thereof. Screen captures, as still images of motion pictures however, are not photographic works independent of the TV series, for which Flowers Film, as copyright holder of the TV series, may assert its right over the screen captures. The Internet users’ acts of network dissemination of information, though without permission by the copyright owner, do not conflict with the ordinary copyright interests, and cause no unreasonable injury to copyright owner’s legitimate interest, for which Flowers Film provides no evidence, either. Therefore, the acts are fair use of Flowers Film’s work, causing no damages to the network dissemination of information right of Flowers Film. Given that no infringement is found for the Internet users, neither for Douban.com. therefore the court dismisses the entire claims of Flowers Film. The trial court decision becomes effective since neither of the parties files appeal.
[Judge’s Comment] Article 22 of Copyright Law enumerates 12 acts as fair use.
Yet the rapid development of new technologies of dissemination and new mode of business caused tremendous impact upon such closed-end legislative mode. The exhaustive list of fair use under this article can no longer meet the needs of reality. This case starts from the origin of the fair use regime, by applying the tripartite test in conjunction with Article 21 of the Implementing Regulation of Copyright Law to consider whether the acts at issue affects the ordinary use of the work and whether it causes unreasonable injury to the copyright owner’s legitimate interest in order to be granted fair use. This case sets the peripheral boundaries of fair use by conducting active exploration, and its decision achieved the balance between copyright owner’s interest, and that of the ISPs’ as well as the public, which serves certain referential value for deciding similar cases, and has promotional effect for the development of movie critique.
Case 4
Dispute over Network Dissemination of Information Right for “Layout Design”
Trial Docket: (2016) Jing0108MinChu No. 5561 Appeal Docket: (2017) Jing73MinZhong No. 164
[Headnotes] Layout design is to set out the plan for a printing work, including the contents, columns, fonts, line spaces, punctuations, etc., and the arrangement of these elements.
Layout design is the result of publisher’s completed editing work, in the protectable range of neighboring rights. Different from work of authorship, layout design is hardly original, and would not qualify for copyright protection under any one of the seventeen items of copyrightable subject matters within Article 10 of Copyright Law, whose protection being limited to reproduction.
[Synopsis] Appellant (Plaintiff below): China Architecture & Building Press (CABP) Appellee (Defendant below): Beijing Yisheng Leju Information Services Ltd. (YiSheng LeJu) CABP, owner of the exclusive right of publication for the textbook Management of Architectural Engineering Projects, (4th Ed.), believes that YiSheng LeJu, without permission, offered to public the download service on its website “dichan.sina.com.cn” in violation of its layout design right. CABP contends that Copyright Law gives a publisher the right under Article 36 to permit another to use, or prohibit from using, its layout design of books or periodicals, where the word “use” under this Law is not confined to reproduction, which is merely one act within use, but not all; that as publisher, appellant has the right to prohibit another from using the layout design at issue by means either of traditional paper work for reproduction, sale or dissemination, or of network dissemination of information with scanned ebooks using the layout design at issue. In sum, CABP prays for 30,000 Yuan in compensatory damages plus 10,000 Yuan for reasonable expenses against YiSheng LeJu.
YiSheng LeJu responses by arguing that the right of layout design does not include network dissemination of information right; that the reproduction or uploading of the book at issue, being made by Internet customers, rather by YiSheng LeJu, cannot be infringement of the layout design by YiSheng LeJu, who is merely an information storage service provider, entitled to the safe harbor protection for customer-provided contents; and that the scanned book uploaded by the customer is for its contents rather than for its layout designs. In sum, YiSheng LeJu does not infringe the layout design right of the book at issue.
The Haidian District People’s Court at trial finds that layout design is to set out the plan for a printing work, including the contents, columns, fonts, line spaces, punctuations, etc., and the arrangement of these elements. Layout design is the result of publisher’s completed editing work, in the protectable range of neighboring rights.
The publisher has the right to permit another to use, or prohibit from using, its layout design of books or periodicals.
Taken together with the meaning of layout design, its use, industry customs, and other factors, the protection range is narrow, mostly limited to reproduction right. The subject matter for network dissemination of informationright covers works, performances, or audio/ visual works, but not layout designs. Therefore the court rejects CABP’s contentions.
After the trial court’s decision, CABP is not satisfied and appeals to the Intellectual Property Court of Beijing. The appeals court finds that layout designs, unlike a work of authorship, can hardly satisfy originality requirement, incapable thus of the meaningful copyright protection and unable to fit in any of the seventeen copyrightable subject matters under Article 10 of Copyright Law, whose protection is usually limited to the reproduction right. The court affirms.
[Judge’s Comment] Layout design is the result of a publisher’s completed editing work, protectable in the range of neighboring rights. Unlike a work of authorship, a layout design can hardly satisfy the originality requirement, incapable of meaningful copyright protection, and unable to fit in any of the seventeen copyrightable subject matters under Article 10 of Copyright Law, whose protection is limited to reproduction right only. If protection of layout design is read into the seventeen copyrightable subject matters as the same for works of authorship eligible for network dissemination of information right under Article 10 of Copyright Law, it will not comply with the legislative intent to distinguish between narrowly defined copyright and neighboring rights. The layout design protection may not cover network dissemination of information, neither can layout designer claim infringement against another for the acts of placing the layout design into Internet, or contributory infringement against an ISP.
Case 5
Copyright and Tort Dispute over “Mao Dun Manuscript”
Trial Docket: (2016) Su0116MinChu No. 4666 Appeal Docket: (2017) Su01MinZhong No. 8048
[Headnotes] The owner of an original work of art, by obtaining the property right, does not necessarily obtain the copyright per se. When property right conflicts with copyright, the exercise of the property right should not cause injury to the legitimate interest of the copyright owners. An auctioneer, upon entrustment from a property principal, should be responsible for taking care of the property right, in addition to the protection of reasonable copyright. Copyright Law does not restrict the expression of intellectual result to a single use, nor does it preclude the possibility that a single work be recognized as different work of arts. When a piece of intellectual achievement qualifies for both work of literary art and for artistic work under Copyright Law, it should be treated both as a literary work and as artistic work, to be entitled to appropriate copyright protection.
[Synopsis] Appellant (Plaintiff below): SHEN Weining, SHEN Danyan, SHEN Maiheng Appellee (Defendant below): ZHANG Hui, JingDian Auctions Co., Ltd. of Nanjing (JingDian Auctions) In 1958, Mr. MAO Dun wrote a critique in paint brush, A Talk on Recent Novelettes, which was published in People’s Literature. Subsequently, ZHANG Hui obtained the manuscript of the article, and in 2013 entrusted JingDian Auctions to sell it. Upon entrustment JingDian uploaded HD photos of the manuscript for promotion on company website and bloggers. The public may inspect the manuscript in its entirety while viewing the website of the auctions, and may examine the details of the manuscript using the magnifying glass function. In the end, the auction failed, and the manuscript is still in ZHANG’s possession. Upon completion of the auction, JingDian Auctions continued to display the manuscript and did not delete it until June 2017. Shen Weining, Shen Danyan, Shen Maiheng are the legitimate heirs to Mr. Mao Dun, who believe the preceding auction by ZHANG JingDian Auctions is in violation of the copyright in the manuscript, and files a lawsuit claiming: 1. An injunction against ZHANG and JingDian Auctions from infringement of the right of display, publication, reproduction, distribution, network dissemination of information for the manuscript as work of art, and of the right of reproduction, distribution and network dissemination of information for the manuscript as literary work; 2. Acknowledgment of wrongdoing and apology from JingDin Auctions and ZHANG on the Internet; and 3. Payment of economic damages from JingDin Auctions and ZHANG in the amount of 500,000 Yuan.
After the trial court decision, the Shens, not satisfied, appeal to the Intermediate People’s Court of Nanjing. The court, upon trial, finds
I. That ZHANG Hui is the rightful owner of the manuscript.
As far as the substantive rules are concerned, the manuscript is a tangible movable which is actual possession of ZHANG, which under Real Right Law is the public notice for property ownership, and the prima facie evidence of ZHANG Hui’s ownership of the manuscript unless proven to the contrary.
II. That the manuscript is both a literary work and an artistic work.
By classification, an artistic work, being a copyrightable subject matter for work of art under Copyright Law, must show aesthetic beauty, “through arrangement of lines, colors, etc.” apart from the originality and reproducibility requirement for other works in general. In this case, Mr. Mao’s manuscript, a ten thousand word long article written by paint brush taken by its entirety, shows coherence and calligraphy, using upright tips accompanied by side tips, with a taste of beauty, obviously qualifies for artistic work under Copyright Law. The Law never precludes a work from multiple expressions to be recognized as different types of works. The manuscript at issue is an intellectual achievement of a work expressed in so many words, as well as a piece of art, i.e., it is both a literary work, and a work of (calligraphic) art.
III. JingDian Auctions infringes the copyright in artistic work for the manuscript.
JingDian Auctions fails to exercise due care. In this case, JingDian Auctions not only has the duty to verify the identity, property ownership of the consignor, but also take into consideration the copyright status contained in the manuscript. JingDian Auctions fails, however, to live up to its duties of due care, by failing to verify the copyright status or the proprietorship of the manuscript at issue when first entrusted, or to take care for avoiding the copyright owner/ s’ interests in the subsequent auctions, which is intentional negligence. The upload of the manuscript in high fidelity format of 2836×4116 pixels to the auction website, revealing every detail in its entirety to the public without reservation, and the continued use of the work after the auction by JingDian, are infringement of the right of publication, reproduction, display, and network dissemination of information of artistic work in the manuscript, for which liability follows.
Finally, ZHANG Hui’s conduct is not copyright infringement. As owner of the manuscript, he has the right to dispose of his own legitimate property by means of auction, without the intention of copyright infringement or conduct of executing the infringement. JingDian Auctions’ infringement does not necessarily stem from ZHANG’s entrustment. Therefore, ZHANG Hui does not infringe upon the copyright of the manuscript.
The Intermediary Court of Nanjing decides in the second instance: JingDian Auctions is liable for an apology by publishing a statement for its infringement in Yangzi Evening and its official website, and for a payment of 100,000 Yuan in damages to SHEN Weining, Shen Danyan, Shen Maiheng.
[Judge’s Comment] I. This case specifies the duty of due care for intellectual properties on the part of an auctioneer in auction activities. As the value of an artistic work increases with time, it is usually transferred in the market by means of auction. Yet in reality, an auctioneer may not be fully aware that the original work of art may carry two sets of rights in chattel and in copyright, which result in giving more weight to the ownership of the chattel and not the copyright, leading to injuries of intellectual property proprietorship. In the past, there were cases that dealt with copyright issues in auction activities but did not reveal what rules were to be followed. The significance of this typical case is that it delineates the rights and obligations in the overlapping areas of Copyright Law, Real Right Law, and Auction Law, specifying the duty of due care for the auctioneer. When an auction item involves intellectual property, the auctioneer should conduct the auction in appropriate form, by either obtaining approval from the owner, or taking reasonable and effective measures for avoidance.
II. Balancing and protecting the legitimate interests between chattel owners and copyright holders. This case clarifies that lawful execution by owner of an original piece of work, in which the copyright and property right are separated, for disposal, profit, or display, will be protect by law, not to be interfered with by the copyright holder, and especially when the literary work is already published, the copyright holder’s claims may not be sustained in court, delineating the boundaries of different rights, and embodying the judicial concept of balancing the protection for legitimate chattel rights and copyright.
III. Showing the concept for strict protection and lucid judgment. The case reflects a heightened duty of care by imposing due diligence for auctioneers, as well as strict protection of intellectual property by requesting an apology to copyright holders on basis of injunction and compensatory damages. Meanwhile, the factual findings on the property ownership for the manuscript, the meticulous analysis for the copyright infringement, and the assessment of the amount of damages based on careful consideration of the infringing activities and consequences, all these show the lucid judicious concept for judgment, which may serve as a model.
