Case 16
The Case of Zhejiang University Press’ Infringement upon Copyright
Trial Docket: (2017) Zhe861MinChu No. 2270
[Headnotes] China’s Copyright Law is formulated to protect author’s rights and interests. The provisions in the law governing the statutory authorization of textbook are a balance between copyright and public interest, which imposes appropriate restrictions on author’s rights. Therefore, there should be a strict determination of textbooks. If no evidence can prove that the teaching book is used as formal textbook for classroom teaching, it cannot be ascertained as a textbook provided for in the Copyright Law. Unauthorized use of others’ works should be ascertained as infringement upon copyright. However, if the allegedly infringing book is used as a common teaching book with a use of others’ works in a small proportion, and stopping the publication and distribution of such books will not only affect the normal procedure of relevant teaching activities, but also cause a large waste of resources, there may be a rule, as the boundary for copyright protection and the standard for author’s tolerance, to follow that does not hinder educational development by increasing the compensation amount instead of stopping the publication and distribution in order to compensate the author and balance the interests of all parties.
[Synopsis] Plaintiff: Ji Guangyang Defendant: Zhejiang University Press Co., Ltd. (ZUP), Bookuu Network Media Group Co., Ltd. (Bookuu) The article “One Minute” was published in the fifth issue of Readers in 2002, with a full text of about 680 words and Ji Guangyang as its author. In March 2012, the article (affixing Ji Guangyang as the author) was compiled into Putonghua Level Testing Textbook for Zhejiang Prince edited by the Zhejiang Provincial Language Commission and Zhejiang Provincial Association of Language Workers and published by ZUP. The Chinese Pinyin letters are marked above every Chinese character in the text to make it a reading book for Putonghua level test. Ji Guangyang argued that both ZUP and Bookuu infringed upon his copyright by the former’s unauthorized use of his work “One Minute” and by the latter’s sale of such books, and requested a judgment ordering ZUP to stop its publishing and distribution of the allegedly infringing books and make a payment of 20,000 Yuan as economic losses and reasonable expenses, and ordering Bookuu to stop selling such books. ZUP argued that the use of relevant work needs no consent of the author because the allegedly infringing book was a textbook edited and compiled for the implementation of China’s education plan, and that compensation amount claimed by the plaintiff was too huge and exceeded the statutory remuneration standard. Bookuu argued that it was just a seller and had legal purchase channel, that it had stopped selling the allegedly infringing books after being notified, and that it should not be liable for compensation as a result.
The Hangzhou Railway Transport Court ruled, after trial, that, as a professional publishing organization, ZUP infringed Ji Guangyang’s copyright by its using the latter’s works in the book it published and distributed without the author’s authorization. The court held that the provisions in the copyright law are designed to protect the author’s rights and interests and its provisions governing the statutory authorization of textbook is just a balance between the copyright and public interest, which imposes appropriate restrictions on author’s rights, that there should be a strict determination of textbooks as a result, that not all teaching books can be regarded as textbooks in the sense of copyright law, that the press has the obligation to prove the book it published is the textbook provided for in the copyright law, and that ZUP’s argumentation shall not be accepted because of its failure to submit evidence to prove its argumentation.
With regard to Ji Guangyang’s claim for ordering ZUP to stop its publishing and distribution of the allegedly infringing books, the court ruled that it is a commonly used teaching book for Putonghua professional education because it had been printed 25 times from March 2012 to August 2016, and that such stop because of its mere use of a short work no more than a thousand words will not only lead to an imbalance of interests between the parties, but also be not beneficial to the development of education in relevant fields. Therefore, it rejected Ji Guangyang’s claim for such stop, but increased the compensation amount as a substitution compensation for the author’s rights that has not be fully protected in order to balance the interests of the author, the public and the press.
The court rendered a judgment that ZUP shall pay 8,000 Yuan to Ji Guangyang as economic losses and reasonable expenses, and all parties accepted the judgment.
[Judge’s Comment] This case is a dispute over the infringement upon copyright involving textbook. As to whether the statutory authorization system can be applied to the use of others’ work in teaching books, China’s Copyright Law has corresponding provisions in Article 23, but it has no clear definition of textbook, due to which disputes have arisen over the requirements that textbooks should meet. In addition, teaching books often contains public interest elements and some reasonable uses of others’ works. If the teaching book is an infringing product, can a judgment be rendered to stop its being published and distributed? There have been no uniform practice followed by the courts in China in this regard. The court hearing the case ruled that there should be a consideration of relevant provisions and the specific circumstances of the case when determining whether the teaching book can be ascertained as textbook and how to grant necessary remedies to the publisher of the allegedly infringing teaching book.
Determination on Whether Teaching Book is a Kind of Textbook Provided for in the Copyright Law
Teaching books refer to the books related to teaching activities. Not all teaching books are textbooks. Whether the teaching book is textbook stipulated by the copyright law should be proved by the publisher. The court should strictly consider the evidences submitted by the publisher in support of its claim that the teaching book it publishes is a kind of textbook. There should be a consideration of: ① the basis for editing and compiling the teachinag book which should be based on the course plan or the professional teaching instruction plan formulated by the competent administrative authority under China’s State Council or China’s provincial government and ② the actual use of the teaching book, which means that it should be used for classroom teaching.
(2) If the Teaching Book Involved is a Commonly Used Teaching Book, Remedies should be Granted to the Publisher.
Although statutory authorization system can not be applied to the accessory teaching book, the main component of teaching book, as that to textbook, there should, from the perspective of facilitating education development and after ascertaining the publication of accessory teaching book as a product of infringement, be a different handling of good and bad accessory teaching books, as well as malicious and non-malicious infringements to determine whether there should be a stop of publishing and distribution according to its significance on the teaching activities and the necessity of using others’ works.
In summary, the court of firstinstance ruled that the publisher has infringed upon others’ copyright because of its unauthorized use of others’ works in the books involved. However, in consideration of the influence of the books involved on the relevant teaching activities, the significance of the works involved on the books involved and the publisher’s negligence in infringement, the court didn’t order the publisher to stop its publishing and distribution of the books involved, but increase the compensation amount as a substitution compensation for the author’s rights that has not be fully protected in order to balance the interests of the author, the public and the press.
Case 17
The Case of Conflict Between Trademark Application and Prior Copyright
Trial Docket: (2017) Su0509MinChu No. 4625
[Headnotes] Applying for trademark registration is a market act in essence. The applicant should follow the principle of honesty and credibility, and avoid possible conflict with others’ prior right. Otherwise, others’ legal rights and interests may be harmed.
According to Article 32 of China’s Trademark Law, no applicant for trademark registration application may i nf r inge upon anothe r person’s existing prior rights. If the application for trademark registration infringes upon others’ copyright, the application may not be approved and may be cancelled or even be ordered to compensation for infringement even after the application is approved.
[Synopsis]
Plaintiff: A
Chen Defendant: A company in Wujiang City
A Chen is a designer specializing in graphic design work with a certain reputation for his works. The defendant is a textile enterprise in Shengze Town of Jiangsu Province. The dispute between both parties arose from a fine art work designed by the plaintiff. The work is abstractly combined by two elements of swan and lotus, which was filed by the plaintiff with Shenzhen Digital Works Filing Center for record and published in publicly published magazines. The defendant used the design when applying for trademark registration. After his discovery, the plaintiff brought an action on the ground that the defendant infringed upon his right to authorship, reproduction, distribution and information network dissemination, etc., claiming for an immediate stop of using the trademark and a compensation of 40,000 Yuan as economic losses. The defendant admitted in the trial that the trademark its used for registration was produced by a color printing company that commissioned the printing of brochures when the company was incorporated, that it was very likely downloaded by color printing company on the Internet and infringed upon the author’s copyright because it did not examine its originality.
The court ruled that, according to Article 32 of China’s Trademark Law, no applicant for trademark application may infringe upon another person’s existing prior rights, nor may he, by illegitimate means, rush to register a trademark that is already in use by another person and has certain influence, that the plaintiff in the case has existing prior right to the design works created by himself, and that the defendant’s use of such works without authorization constitutes infringement upon the plaintiff’s copyright. Through mediation, the defendant agreed to pay 18,000 Yuan to the plaintiff’s as the fee for using the design in the end, and the plaintiff agreed that the defendant continues to use the registered trademark during its validity period.
[Judge’s Comment] This case involves the conflict between the trademark application and other rights, namely, the copyright protection of the existing prior right. Both parties voluntarily reached a settlement agreement through conciliation in which the copyright owner authorizes the trademark to be continually used by the defendant for record and the trademark right owner paid a reasonable consideration to the copyright owner. By doing so, the interests of the copyright owner and trademark right owner are effectively balanced and a win-win effect is achieved after a game and balance of different rights.
Case 18
The Dispute over the Right of Authorship of the Work “The Legend of Mi Yue”
Trial Docket: (2015) WenLuZhiChuZiDi No. 74 Appeal Docket: (2017) Zhe03MinZhong No. 351
[Headnotes] Where there is no stipulation on the form of signature under the contract, the producers use specific title in the film and television works to reflect the division of labor and scriptwriter’ different role. This practice itself is not prohibited by China’s Copyright Law or other laws.
In collaborative works, different authors’ contributions to the final work can not be calculated according to simple comparison of characters, relations, plots, etc. in different versions of scripts because every author has a complicated influence on the elements of the work.
The work should be the carrier for exercising the right of authorship. Case 18 The Dispute over the Right of Authorship of the Work “The Legend of Mi Yue”Trial Docket: (2015) WenLuZhiChuZiDi No. 74 Appeal Docket: (2017) Zhe03MinZhong No. 351 Poster and trailer of film and television works are produced by the producer for promoting the work which are not the work itself and their objective and function is not to indicate the scriptwriter’s identity.
[Synopsis] Appellant (plaintiff in the original trial): Jiang Shengnan Appellee (defendant in the original trial): Dongyang Municipal Huaer Film and Television Culture Co., Ltd. (Huaer Company), Wang Xiaoping
In August 2012, Huaer Company signed an agreement with Jiang Shengnan, which provided that Jiang would create script for the original TV series. “The Legend of Mi Yue” and revise the script according to the Company’s requirements, that the Company has the right to hire others to make revision and creation based on Jiang’s script if Jiang Shengnan’s revision can not satisfy the requirements, that the order of scriptwriter authorship shall be determined by the Company, and that Jiang Shengnan agreed to be affixing his name as the original scriptwriter in the TV series’ title. During the creation of the script of “The Legend of Mi Yue”, the script submitted by Jiang Shengnan could not meet the requirements of Huaer Company after modification. The company signed a contract with Wang Xiaoping in August 2013 to entrust Wang Xiaoping to make a revision with Jiang Shengnan’s script as the basis. Through the producer’s coordination, most of the script’s contents were changed as follows: Jiang Shengnan created the first draft which was sent to the producer for Wang Xiaoping to revise and create. From October 2013 to October 2014, Wang Xiaoping successively submitted a script for shooting the TV series of “The Legend of Mi Yue”, and made further revision of the script after the series began to be shot. “The Legend of Mi Yue” has a record of “Jiang Shengnan: the original scriptwriter” and “Wang Xiaoping: the chief scriptwriter” on its title, the cover of DVD publication package, brochure’s cover, etc. Jiang Shengnan brought an action in the court on the ground that Huaer Company and Wang Xiaoping infringed upon his right of authorship because the defendants affixed “Wang Xiaoping” as the first and chief scriptwriter of the TV series “The Legend of Mi Yue”on the above-mentioned carriers and other materials, and that Huaer Company failed to show that (it was) “adaptation of Jiang Shengnan’s novel with the same title” and to affix Jiang Shengnan as the scriptwriter. He claimed for a judgment ordering Wang Xiaoping and Huaer Company to immediately stop infringement, make apologies and pay 10,000 Yuan to him as economic losses and reasonable expenses. The Wenzhou Lucheng District People’s Court ruled, after trial, that the two defendants did not infringe upon the plaintiff’s right of authorship because the practices of Huaer Company and Wang Xiaoping in the case did not violate the contractual agreement, and the method of affixing Wang Xiaoping as the “chief scriptwriter” did not derogate Jiang Shengnan’s identity as an original scriptwriter and his contribution to the script. Therefore, the court rendered a judgment on October 24, 2016 to reject Jiang Shengnan’s claims.
Jiang Shengnan refused to accept the judgment of first instance and filed an appeal with the Wenzhou Intermediate People’s Court, which rendered a judgment on December 12, 2017 that the appeal shall be rejected and the original judgment shall be affirmed.
[Judge’s Comment] This case is a dispute caused by the sequence and method of authorship between two scriptwriters of the hot TV series “The Legend of Mi Yue”. It has attracted wide attention and involves several difficult legal issues related to the right of authorship. The first is whether the producer may affix the title such as “chief scriptwriter” or “original scriptwriter” to TV series works where there is no agreement on the authorship form under the contract. The second is whether the producer’s failure to affix the scriptwriter’s name on the posters and trailers of the TV series infringes upon the plaintiff’s right of authorship. There are no legal provisions on the above issues which have faced with a considerable controversy in judicial practice.
With regard to the first question, the court of first instance ruled that, according to the contract, Huaer Company had the right to hire Wang Xiaoping to make revision and creation based on Jiang Shengnan’s script because Jiang’s work could not meet the Company’s requirements after being revised and to determine the authorship order of the scriptwriters; the court of second instance ruled that the laws does not ban the producer’s practices of affixing special titles such as “the chief scriptwriter” or “the original scriptwriter” to the scriptwriters’ authorship on the TV series works in order to reflect every scriptwriter’s different work and role when there is no agreement in this regard under the contract because every scriptwriter plays different role in the works co-created by two persons, that the producer has the right to do so provided that is it not in violation of good customs and infringes upon on no interests of the State, the public and others, that Huaer Company was no incorrect in its practice of affixing “the chief scriptwriter” to Wang Xiaoping’s authorship and “the original scriptwriter” to Jiang Shengnan’s authorship because Wang Xiaoping played an instructive and overall role while Jiang Shengnan played an original and pioneering role in the process of creating the script of the TV series “The Legend of Mi Yue”, and that such practice did not infringe upon Jiang Shengnan’s right of authorship.
With regard to the second question, both the courts of first and second instance held that the work should be the carrier for exercising the right of authorship according to the provisions of China’s Copyright Law, that Huaer Company’s failure to record that (the series was an) “adaptation of Jiang Shengnan’s novel with the same title” or affix Jiang Shengnan as the scriptwriter on the posters and trailers of the TV series “The Legend of Mi Yue” did not infringe upon Jiang Shengnan’s right of authorship because the posters and trailers were produced for promoting the series whose objective and function are not to indicate the authorship, and that Wang Xiaoping shall not be the subject for the claimed civil liability of the case because his introduction of him as the chief scriptwriter of the series on his weibo was in line with the authorship agreement with Huaer Company.
In addition to filling the relevant legal gap, the judgment of this case establishes some typical and referential adjudicating rules, which can be drawn for the trial of similar cases.
Case 19
The Case of Dispute over Infringement upon the Copyright of “ShopNC” E-commerce System Computer Software
Trial Docket: (2016) Zhe1081MinChu No. 3924 Appeal Docket: (2017) Zhe10MinZhong No. 1825
[Headnotes] Where the defendant refuses to provide the software source program for direct comparison without justifiable reason and the plaintiff can not directly prove its claim because of objective difficulties, there should be a reasonable determination of the proof standard from the perspective of fairness, honest and credibility, and an assumption may be made that the defendant reproduces (uses) the source code of the software copyright owner according to the principle of preponderant evidence.
Whether the source of computer software is open should be determined by the corresponding license selected by the copyright owner. There is no necessary link between the adoption of license agreement on sharing the open source software knowledge and the free use of computer software.
[Synopsis] Appellant (defendant in the original trial): Wenling Municipal Dacromet Coating Industry Co., Ltd. (Dacromet Company)
Appellee (plaintiff in the original trial): Tianjin Municipal Wangcheng Tianchuang Technology Co., Ltd. (Tianchuang Company), Tianjin Municipal Wangcheng Technology Inc. (Wangcheng Company)
Defendant in the original trial: Zhejiang Shangbang Technology Co., Ltd. (Shangbang Company)
In March 2015, the defendant Dacromet Company and the defendant Shangbang Company signed the “Service Contract on Shangbang Technology Project Platform”. According to the contract, Shangbang Company shall, in addition to establishing a network platform in the name of Metal Mall and with “Jinshu.sc” as the domain name, for Dacromet Company, be responsible for the construction, development, maintenance and upgrade of the platform.
On March 30, 2016, Wang Haidong, the entrusted agent of Beijing Huatai Law Firm, used the computer of Beijing Guoli Public Notary Office to inquire about the information registration of the domain name “jinshu.sc”, and got relevant results after searching “ShopNC” in the source documents of several web pages of the website www.jinshu.sc. Guoli Public Notary Office issued a Notary Certificate (2016GuoLiNeiZhengZi No. 4960) for this process. Tianchuang Company and Wangcheng Company argued that the notary certificate’s contents respectively reflected the situations of the defendant’s Dacromet Company’s website, the plaintiff Tianchuang Company’s website, and other websites authorized by the plaintiff, and that the defendant Dacromet Company’s website involved in the case was similar to the pages of the website designed by its genuine software, that the information such as “ShopNC” could be found in the web pages and webpage source code of Dacromet Company’s website. Therefore, Tianchuang Company and Wangcheng Company brought an action against Dacromet Company and Shangbang Company in the Wenling Municipal People’s Court of Zhejiang Province, requesting a judgment to order the two defendants to bear legal liability such as stopping infringement and compensating for the losses according to law.
The Wenling Court ruled in its judgment of first instance that the defendant Shangbang Company conducted acts such as reproduction and use of the software involved in the case without plaintiff’s authorization, and that Shangbang Company shall immediately stop the infringement upon the plaintiff’s copyright to “ShopNC” e-commerce system computer software, uninstall the software from its computer system and pay 60,000 Yuan to the plaintiff as economic losses.
Shangbang Company refused to accept the judgment and filed an appeal with Taizhou Municipal Intermediate People’s Court of Zhejiang Province, which rejected the appeal and affirm the original judgment.
[Judge’s Comment] In this case, the court of first instance held that: (1) The holder of software’s copy does not know and has no reasonable reason to know that the software is an infringing copy and does not assume any liability for compensation, but should stop using or destroying the infringing copy. The defendant Dacromet Company’s business scope does not contain computer software and other related industries. It lacks professional knowledge in related fields, and has no actual control over the server and the software installation involved. When Shangbang Company provided the services such as website construction and server space supply, Dacromet Company had no reasonable reason to know that the software installed on the server of the website infringed upon others’ copyrights, so the defendant Dacromet Company may not be liable for compensation.
(2) During the trial, although the defendant Shangbang Company requested a comparison with the source code preserved by the plaintiff’s at the Copyright Protection Center of China, the code CD submitted by it for evaluation and comparison was not source code developed by Shangbang Company for Dacromet Company, making it impossible to evaluate and ascertain the disputed facts of the case. Meanwhile, Shangbang Company submitted no evidence to prove its argument that the software involved was open source software.
In summary, the court of first instance found that Shangbang Company conducted acts of reproducing and using the software involved without the plaintiff’s authorization.
The court of second instance ruled that the parties’ dispute in the case focused on whether the defendant of first instance reproduced (used) the source code of the “ShopNC” e-commerce system computer software of the plaintiff of the first instance and whether the ShopNC e-commerce system computer software developed by the appellee based on the PHP language was open source (free or even free to use) software.
In this regard, the court of second instance found that:
(1) In the trial of first instance, the evidences submitted by the two plaintiffs showed that the website pages involved were similar to the website pages designed by genuine software in terms of design, and the source files of the web pages on websites involved contained “ShopNC” in many places, to which Shangbang Company submitted no evidence to the contrary to rebut or given a reasonable explanation. The code CD submitted by Shangbang Company for evaluation and comparison had no effect as ruled by the court of first instance, making it impossible to ascertain the disputed facts of the case through evaluation. According to the principle of preponderant evidence, it should be assumed that Shangbang Company reproduced (used) the source code of the plaintiff of first instance.
(2) Although the PHP manual adopts the knowledge sharing license agreement and the software involved in the case is also written in PHP language, these facts has no necessary link with whether the software after being written is open (free or even free to use) or not. Whether software is open (free or even free to use) or not depends on the corresponding license for the software. The appellant in this case did not submit evidences to prove that the appellee chose open source license for the software involved, not to mention proving that the software involved can be freely used or is free to use. Therefore, Shangbang Company failed to establish its grounds for appeal that its act did not constitute infringement because the “ShopNC” e-commerce system computer software was open source software.
This case involves the rules for distributing the burden of proof where the alleged infringer refuses to submit the infringing source code for comparison. Where the defendant refuses to provide the software source program for direct comparison without justifiable reason and the plaintiff can not directly prove its claim because of objective difficulties, there should be a reasonable determination of the proof standard from the perspective of fairness, honest and credibility. This is also the first case in which the alleged infringer’s adoption of open source software constitutes no infringement, and the judgment clarifies the relationship between the open source software knowledge sharing agreement and free use, which may serve as a referential guidance for similar cases to certain extent.
Case 20
The Case of Dispute over the Infringement upon Copyright Through the Selling of Infringing Copyright Products by Network Shop on E-commerce Platform
Trial Docket: (2017) Min05MinChu No. 701
[Headnotes] The e-commerce platform provides network shop operators with a network platform and network service for selling goods. In the case where the operator’s sale of good is suspected of being involved in the infringement upon copyright, the network service provider should not bear joint infringing liability with direct infringer if, after the plaintiff’s complaint or initiation of lawsuit, the network service provider, according to relevant management rules formulated by itself, timely deletes the online sale information of the allegedly infringing products to fulfill its due diligence obligations as network service provider, and take necessary measures to stop infringement and has no negligence for the occurrence of the allegedly infringing act.
[Synopsis] Plaintiff: Quanzhou Softmoon Arts & Crafts Co., Ltd (Softmoon Company)
Defendant: A Ke, Zhejiang Taobao Network Co., Ltd. (Taobao Company)
As an employee at the plaintiff Softmoon Company, Ruan Xianzhao completed the creation of the fine art work “Animal Magnet A-4”, which is a work with the front head of a small yellow dog as the theme. Softmoon Company applied for copyright registration with the Fujian Provincial Copyright Bureau in August 2016, with Min Zuo Deng Zi-2016-F-00030527 as the registration number and Softmoon Company as the copyright owner. On April 12, 2017, the plaintiff bought, under notarization, the infringing products involved in the case from the shop of www.hangpin.com operated by A Ke on the platform of www.taobao.com.
The plaintiff brought a lawsuit in the Quanzhou Municipal Intermediate People’s Court of Fujian Province, arguing that the defendant A Ke, without authorization, reproduced and published the works which infringed upon the plaintiff’s copyright, and that the defendant Taobao Company knew the defendant A Ke’s infringement, but still allowed the allegedly infringing products to be sold on its website, due to which they co-conducted infringing acts, and as a result, they should bear the infringing liability.
The Quanzhou Intermediate People’s Court of first instance rendered a judgment to order the defendant A Ke to immediately stop the infringement and stop the sale of infringing products, pay 3,000 Yuan to the plaintiff as economic losses, and rejected the plaintiff’s other claims.
[Judge’s Comment] In this case, the court ruled, after trial, that, because his act of selling the products similar to the plaintiff’s fine art works without authorization infringed upon the plaintiff’s right of distribution, the defendant A Ke’s shall bear civil liability such as stopping the infringement and compensating for the damages, that the defendant Taobao Company had no negligence for the allegedly infringing act and shall not co-bear infringing liability with the defendant A Ke because it had fulfilled its obligations as network service provider by its timely deletion of the online sale information of the allegedly infringing product after the plaintiff’s complaint or initiation of the lawsuit, and that the plaintiff’s claim against Taobao Company shall be rejected.
At present, online shopping has become more and more popular, and more and more consumers buy goods from e-commerce platforms such as www.jd.com and www.taobao.com. While selling self-operated branded products, major e-commerce platforms have also gathered a large number of online retail store operators with diversified supply channels, and some of their products may infringe upon others’ copyright. Since the e-commerce platform provides online store operators with an online platform for selling goods and network services, when the products sold by the online store operators are suspected of infringing copyright, the e-commerce platform as network service provider may also be suspected of infringing the right to network dissemination of information. Where there is a dispute over the right to network dissemination of information, e-commerce platforms often quote the provisions of Article 22 of Regulation on the Protection of the Right to Network Dissemination of Information (the Regulation) to prove its being exempted from liability undertaking.
How to determine whether the e-commerce platform can be exempted from liability? In judicial practice, the following factors should be taken into account when applying Article 22 of the Regulation for determining the network service provider’s liability: (1) whether the network service provider has fulfilled its obligations to prompting and notification in a reasonable way; (2) whether the network service provider knows or ought to know the existence of the infringement facts; (3) whether the network service provider directly or indirectly conducts the infringement and directly obtains economic gains from the uploading of the contents and (4) whether the network service provider fulfills the removal obligation in a timely manner.
In this case, the court ascertained that Taobao Company publicized its name, contact person and website address on its “Taobao Platform”, that Taobao Company fulfilled its “obligations to prompting and notification”, that, in addition to its lack of infringing intent, Taobao Company had difficulty in finding and determining whether the infringing products involved in the case infringed upon others’ copyright or not because the products involved in the case were not popular products, that the sales income of the infringing products involved in this case was directly obtained by the network shop operator and Taobao Company obtained no direct economic gains from such selling, and that Taobao Company timely fulfilled its obligation to removal by its deletion of the network sale information of the allegedly infringing products after it received the litigation documents. The court ruled, after a comprehensive consideration of the above situations, that Taobao Company shall be exempted from bearing compensation liability because it had no negligence for the occurrence of the allegedly infringing act and because it had fulfilled the corresponding duty of negligence as network service provider and had taken necessary measures to stop the infringement.
（Translated by Zheng Xiaojun, Yuan Renhui)
