Frequent Infringement of China’s Film & TV Works Demands Protection and Regulation —Seminar on Development and IP Protection of China’s Film & TV Games Industry Smoothly Kicks Off
By Meteor Tang, China IP
According to statistics, China's TV games effective sales revenue was 203.61 million Yuan in 2017, a year-on-year increase of 23%, reaching a record high. The data indicates that the era of big IP and new technology as the operation core has arrived.
As the film industry enters a golden period, the infringement issues of IP in the film & video industry also emerge frequently. The traditional film & TV games industry encountered many difficult IP legal problems while entering a critical period of transformation and development. The Seminar on Development and IP Protection of China’s Film & TV Games Industry was successfully held in Beijing on May 26, aiming to provide people in the industry with more communication platforms and opportunities. About 200 domestic and foreign experts and scholars from the industry, academia and judiciary attended to discuss the IP issues in the development of China's film & TV games industry in order to boost the innovation and development of enterprises.
Zhang Lingling: judicial ideas and standards for film and TV copyright infringement
On April 20, Beijing Higher People's Court summarized all the past guidance involving infringement of copyright before, sorted out various problems, formulated Trial Guide for Copyright Infringement by Beijing Higher People's Court (Trial Guide), and released it. It aimed to implement Opinions on Problems of Strengthening Reform and Innovation in Intellectual Property Judgment Field which is issued by General Office of CCCPC (Central Frequent Committee of the Communist Party of China) and General Office of the State Council of the People’s Republic of China, and to promote the quality and efficiency of court's judgment of copyright in Beijing, and also to boost the development and innovation of the cultural industry in Beijing. Judge Zhang Lingling from the IP court in Beijing Higher People's Court talked with the attendants about the practical issues in protection of China's Copyright Law according to the Trial Guide.
Zhang Lingling pointed out that the cases of copyright infringement of film & TV have four remarkable features according to her experiences. One is the big number of cases. In 2017, 40-70% of the first-instance civil cases judged by intermediate, high and basic-level courts in Beijing involved films & TV works. In basic-level courts in Chaoyang district and Haidian district, most of the cases handled are related to online works and network copyright. While part of the rest are non-network film & TV infringement cases. The second feature is the high attention. For example, the case of Qiong Yao v. Yu Zheng involves a popular TV series. It has been judged for five years since 2013 and still draws high attention .The third feature is the complicated relationship. Firstly, fact finding in such cases is a difficulty for the courts, because it involves ownership identification, infringing works fixing ,right claiming work fixing and the substantial similar judgment between two works. These are of vital importance of copyright cases. Secondly, copyright infringement cases of film & TV also involve legal knowledge. With the development of Internet technology, the problems of new technologies such as aggregation platforms and deep links are reflected in film & TV works. The academic and practical fields hold divergent views. In addition, these cases involve not only the interests of two parties, but also the interests of different industrial representatives, so the balance among many entities shall be considered in the trial of film & TV cases.
Judge Zhang Lingling shared her experiences about the principles and standards should be maintained in the judicial practices of film & TV cases. She pointed out that for infringement works, first to conduct ownership identification, which is a necessary step in any copyright cases. Secondly, we must clarify the right of rights claimed by the copyright holder and whether it can constitute the right object protected by Copyright Law. Thirdly, we shall determine the accused infringement content, and compare whether their content constitutes substantial similarity. If so, we shall further judge what kind of infringement responsibilities shall be borne and who shall undertake the infringement entity.
Liu Shaojun: protect IP rights with the block chain technology
2017 is an explosion year for digital currency. There are overwhelming changes in the whole digital currency market. As the earliest digital currency, the price of Bitcoin has risen a dozen times in price and the popularity has brought a new technology idea called block chain technology. Technically, block chain is an innovative Internet technology combining cryptography, distributed networks, data storage and consensus algorithms, etc. And does this professional technology relate to intellectual property? Liu Shaojun from a law institute at the Beijing Academy of Social Sciences pointed out that the application of block chain technology in the protection of intellectual property rights in the film & TV game industry is still a relatively advanced concept. She also shared the nature of block chain technology, the types of application industries, the way to use block chain technology to achieve value flow, and the methods to protect intellectual property rights, etc.
Liu Shaojun introduced that the nature of the block chain is a database. A traditional database has the functions of writing, reading, updating, deleting, and modifying, while the block chain technology directly removes the functions of updating and deleting, which means that it constantly records newly generated transaction information on the block, and stores it in a distributed peer-to-peer way using cryptography. Block chain respects and believes in mathematical algorithm and encryption algorithm, establishing trust through consensus mechanism. This also means that any industry that introduces the block chain technology may no longer need the accreditation given by the so-called authoritative institutions. They will follow the rules of block chain together, achieving the goal of the so-called "code is law".
Block chain technology is first realized in the financial industry due to its digital assets flow nature, whose security, processing cost and processing speed guarantee the strictest security measures towards information. But Liu Shaojun also confessed that not all industries are suitable for introducing block chains, the knowledge assets related to IP are exactly ideal for block chain. Because intellectual property is an asset that can be digitized, and as all the industries related to information flow being the vanguard at the beginning of Internet development while the source of Internet at thai time were mail transmission systems, stock market and search engines, the driving force of block chain also use information flow as logical basis. The incentive mechanism brought it values.
Liu Shaojun also said that there are still many problems to be solved in the industrial application of block chain. There are two aspects related to the storage way of digital assets. One is the digital asset network and the other is the value network. At present, audiences watch or get authorization to use film & TV works through some public websites. This model is based on enterprise monopoly. Enterprises make continuous investment in hardware and software, and the audiences need to buy these services from them. While the technology of block chain scatters digital assets, which means the obligees have the ability and opportunity to put their works on a public chain through the block chain platform. Because he has the only way to access his own work-a private key, thus public platform websites are unnecessary.
Tao Qian: protect the right of integrity in adaptation of film & TV works
When a novel is adapted into a film, or a novel into a scenario, and the scenario is filmed, some plots expressed in the novel would be changed. During the adaptation, when can the author of the novel or the scenario objects the producers of films and brings an accusation against them for infringing their rights of integrity? Tao Qian, an associate professor in China University of Political Science and Law, explained that in Regulation for the Implementation of the Copyright Law of the People’s Republic of China, permission to make necessary alteration shall be implied where the copyright owner has authorized the making cinematographic, television or videographic work based on his or her work, in so far as such alteration does not distort or mutilate the original work. Otherwise, he will infringe the right of integrity.Necessary alteration is a pro forma and substantive alteration following the rule of creation based on the rules and features of art & film creation. The authors and producers can also make conventions to decide the alteration degree, such as the background, the figure development, the creation purpose, and the theme of the original works.
However, disputes may appear in case of no convention or vague convention. Many judicial cases show that we shall respect the freedom of performers' artistic creation. From the perspective of it, some alterations of the scenario writers and film producers are an action of performance which shall be respected. If the range of alteration is not specified or vaguely specified, it is deemed that the authors of original works agree to have alteration without distortion.
Professor Tao Qian believes that we shall seek a balance between the right of adaptation and free creation. Article 10 in Copyright Law emohasized the profction of the right of works from distortion and misrepresentation. Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) states the author shall have the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. From Berne Convention, behaviors such as distortion, mutilation, modification or other derogatory action would objectively be prejudicial to the reputation. In judicial practices, China had two schools about protcting the right of integrity before. One school, having subjective standards, believes that it was infringement as long as the content after deduction changes the individual expression in the original works. The other school having objective standards believes that infringement must include the factor of reputation damage.
This convention also discussed some topics such as the ownership of creation models and copyright of film & TV works, the protection path and standard of damage compensation identification of film & TV games, and the comparison, analysis and reference of intellectual property law systems in China and South Korea film & TV games industries. Experts from academia and IP fields in the South Korea had indepth communication and discussion with Chinese representatives about the practical issues in the film & TV industry. （Translated by Dong Mingming)
