Beijing Internet Court Civil Judgment

(2018) Jing 0491 Min Chu No. 239

Plaintiff: Beijing Film Law Firm, with its domicile at 209, Zone B, Laijin Cultural and Creative Industry Park, No. 1 Balizhuang Dongli, Chaoyang District, Beijing.

Person in charge: Li Wen, Director.

Agent ad litem: Xiong Lingxiao, lawyer of Beijing Film Law Firm.

Defendant: Beijing Baidu Netcom Science & Technology Co., Ltd., with its domicile at Floor 2, Baidu Building, 10 Shangdi 10th Street, Haidian District, Beijing.

Legal Representative: Victor Liang, manager.

Agent ad litem: Wang Kaixiong, lawyer of Beijing Hai Run Law Firm.

Agent ad litem: Tan Hongjuan, lawyer of Beijing Hai Run Law Firm.

After accepting the case by which the plaintiff Beijing Film Law Firm sues the defendant Beijing Baidu Netcom Science & Technology Co., Ltd. for violation of the right of authorship, right of integrity, and right of information communication on networks, the Court carried out a public trial as per the ordinary procedure in accordance with the laws. Agent ad litem Xiong Lingxiao of the plaintiff and agent ad litem Tan Hongjuan of the defendant appeared in court to participate in the legal action. The trial of case is now concluded.

The plaintiff prays to the Court to: 1. order the defendant to immediately desist from the infringement and delete the Analysis Report on Judicial Big Data of the Entertainment Industry—Film Volume • Beijing (“Article Involved”) published by Dianjinss on Baijiahao; 2. order the defendant to make an apology and eliminate the ill influence by issuing an apology statement on Dianjinss’ Baijiahao account; 3. order the defendant to compensate the plaintiff for its economic losses of RMB 10,000; and 4. order the defendant to compensate the plaintiff for its reasonable expenses of RMB 30 in defending its rights.

Facts and grounds: the plaintiff is the copyright owner of the Article Involved, which is a legal person’s work first published on the law firm’s WeChat official account on September 9, 2018. On September 10, 2018, Dianjinss published without permission the article accused of infringement on the Baijiahao platform operated by the defendant, thus infringing the plaintiff’s right of information communication on networks. The defendant deleted the preface, retrieval overview, annual trend chart of the number of cases of the film industry and the “note” part at the end of the Article Involved, thus infringing the plaintiff’s right of integrity. The defendant also deleted the signature in the Article Involved, thus violating the plaintiff’s right of authorship. The infringement act of the defendant has caused economic losses to the plaintiff. The Article Involved includes both written works and graphic works, with a total of 4,511 characters and 15 graphs. Based on the remuneration standard of RMB 300 per 1000 characters (or a part thereof) stipulated in Article 5 of the Measures for Remuneration Payment for Use of Written Works, the remuneration for the written part shall be RMB 1,500. Based on the remuneration standard of RMB 200 per graph, the remuneration for the graphic part shall be RMB 3,000. Therefore, the total remuneration for the Article Involved shall be RMB 4,500. According to provisions on punitive damages, the plaintiff could require a compensation of 5 times that of the total remuneration but in this case only claims the economic losses of RMB 10,000 against the defendant. The reasonable expenses incurred by the plaintiff for the litigation of this case should also be borne by the defendant.

Then during the litigation process, the plaintiff gave up its first claim, changed the second claim to “request the Court to order the defendant to make an apology and eliminate the ill influence by issuing an apology statement on Baijiahao platform,” and changed the fourth claim to “request the Court to order the defendant to compensate the plaintiff for its reasonable expenses of RMB 560 in defending its rights.” The plaintiff once requested the Court to ascertain the plaintiff’s copyright over the Article Involved but later dropped this claim. It also once claimed that the article accused of infringement was published by Dianjinss but later changed the claim, alleging it was published by the defendant.

The defendant argues that: 1. The Article Involved is not original and thus not protected by the Copyright Law. In this case, seen from the version submitted by the plaintiff, the Article Involved contains data and graphs. It should be a report obtained using a legal statistical data analysis software (i.e. Wolters Kluwer China Law & Reference, hereinafter referred to as “Wolters Kluwer Database”). The data were not obtained by the plaintiff through investigation, search or collection. The graphs were not drawn by the plaintiff but were automatically generated by Wolters Kluwer Database. Therefore, the defendant holds that the Article Involved was not created by the plaintiff through its own intellectual labor and thus does not fall in the protection scope of the Copyright Law. 2. The plaintiff is not a proper subject in this case. All articles are created by natural persons. As the fictional subject, a legal person itself cannot carry out any creative activities. According to the Copyright Law, a legal person’s work is a work created according to the will and under the sponsorship and responsibility of a legal person. In this case, the plaintiff did not prove that the Article Involved was created under its organization or by personnel appointed thereby, or that the creation, conception and tone of the Article Involved have reflected its independent will. The constitutive requirements stipulated in the Copyright Law for a legal person’s work are not met as to the Article Involved. Therefore, the plaintiff cannot prove that the Article Involved is a legal person’s work. 3. The plaintiff has no evidence to prove that Baijiahao platform published the article accused of infringement. The plaintiff did not produce its evidence through an authoritative organization, which did not meet the requirements of the Regulations of the Supreme People’s Court on Several Issues Concerning Case Trial by Internet Courts for electronic data collection and storage. Thus its evidence does not have objective authenticity. Furthermore, what the plaintiff submitted is a receipt for storage rather than a notarial document. Since the plaintiff could choose any notarization institution to store the evidence, the receipt is not credible. The preface and annotation are not the main contents of the Article Involved, even if they were deleted, the Article Involved was not distorted and falsified to cause any misreading of its thoughts because the defendant did not edit or delete the contents of the Article Involved. Therefore, the defendant did not infringe the plaintiff’s right of integrity. Besides, the defendant does not conduct substantive examination of contents on Baijiahao because it is an information storage platform. Thus the defendant did not commit the infringement. 4. There is no factual or legal basis for the plaintiff to claim that the defendant should apologize because as a legal person, the plaintiff could not be the object of apology. To sum up, the defendant prays to the Court to dismiss all claims of the plaintiff in accordance with the law.

After both parties submitted evidence in accordance with the law to support their claims, the Court organized the parties to exchange and cross-examine the evidence and has found out the following facts:

One, facts related to the plaintiff’s claim that it enjoys the copyright of the Article Involved

(I) In order to prove that the Article Involved is original and a legal person’s work and that the plaintiff is its author, the plaintiff submitted the following evidence to the Court:

1. The webpage screenshots of the Article Involved and the link of its first publishing. According to these webpage screenshots, under the title of “Film | Analysis Report on Judicial Big Data of the Entertainment Industry—Film Volume • Beijing” there are the words “Original: Film Lawyers, Beijing Film Law Firm” and “China’s First Boutique Law Firm Specializing in Entertainment Practices,” on the right side of which there is the QR Code of the plaintiff’s WeChat official account and other contents. The central part is the preface to the Analysis Report on Judicial Big Data of the Entertainment Industry, the main contents of which are: “Looking into the Future: No Entertainment, No Future ... The key word of 2017 in the tech field is undoubtedly artificial intelligence. In the future, various industries of the national economy will experience explosive development with the help of artificial intelligence, greatly promoting the material civilization progress of mankind. In the cultural field, what we see is that the entire entertainment industry is influencing people’s thoughts through one after another works and their combinations … As long as we start from now to study the laws and trends of the pan-entertainment industry and build a solid foundation for its healthy and benign development, we will surely create a bright future for the entertainment industry! The Analysis Report on Judicial Big Data of the Entertainment Industry will be the first work Film contributes to the industry. To avoid delayed publication of the work, we will publish the report by different volumes (film, TV play, game) and different regions and finally complete the integrated collection. The following is the Film Volume • Beijing of the report.”

The Article Involved first introduces the retrieval overview, including the Wolters Kluwer Database used for the retrieval and the retrieval keywords, case types, document types, trial procedures, etc. The retrieval description states that after the plaintiff searched the judgments according to the above conditions and reviewed and screened the results, 2,589 cases meeting certain conditions were identified as cases of the film industry and received statistical analysis. The Article Involved covers the basic situation of cases of Beijing’s film industry (including the annual trend of the number of cases of the film industry, the distribution of the number of these cases heard by Beijing courts at all levels, the identity characteristics of plaintiffs and defendants of these cases, the distribution of the number of these cases with different causes of actions, the distribution of the number of judgments for cases of the industry, and the ratio of hiring lawyers among enterprises in the industry); the characteristics of various types of cases of Beijing’s film industry (tort, contract, others); and the conclusion. Among them, the conclusion part includes: (1) Legal risks exist in every step of the film industry. In the whole life cycle of a film, from the initial planning to the mid-term investment, shooting and production, and then to the publicity, distribution, and merchandise development at the later stage, there are many kinds and large amount of legal risks which are difficult to prevent and deal with. (2) The film industry sees a high incidence of disputes over the right of information communication on networks. Among the lawsuits filed by enterprises of the film industry, disputes of this type account for more than 32% of the total, a phenomenon closely related to the rapid development of Internet technology. Thus having a risk prevention and control plan for Internet infringement should become the standard configuration for every enterprise of the film industry. (3) Enterprises of the film industry are highly motivated to hire lawyers. An enterprise having hired lawyers is far more likely to win a lawsuit. Among infringement cases with only the plaintiff being an enterprise in the industry, 90% of the winning cases are represented by lawyers. (4) The amount of compensation ordered for infringement cases in the film industry is generally low. In the infringement cases in which the obligee claims for compensation, the compensation amount does not exceed RMB 11,000 in 62% of the cases and does not exceed RMB 20,000 in 79% thereof. This is in sharp contrast to the huge infringement income that infringers can easily obtain from film works. With low amount of compensation, judicial judgments will have no deterrent effect on infringers. To curb the high incidence of infringement cases, it is imperative to increase the amount of compensation for infringement in judicial judgments. The Article Involved uses 15 graphs such as curves, histograms and doughnuts to illustrate relevant statistical data.

2. An electronic data storage letter. Beijing Guoxin Notary Office issued an Electronic Data Storage Letter (No. 20180918105748810474576) on September 18, 2018, which said that user “qujianhuan005” fixed the webpage with the URL of http://mpweixin.qq.com…… as an evidence using the Static Webpage Forensics function of the Notary Office’s Notarization Cloud system at 10:57:48 on September 18, 2018 and submitted the evidence to the Notary Office for storage. The electronic data fingerprint (MD5) of the webpage data file stored is ... (special note: this storage letter is only a receipt for the electronic data storage, not to be used as a certificate. If the contents of the relevant documents need to be proved, please submit a separate application for notarization. The notary office will decide whether to issue a notarization certificate or not after review in accordance with the law). The defendant raised objection to the “Electronic Data Storage Letter,” arguing that it is not a notarial certificate issued by the notary office and cannot prove that the plaintiff is the right holder of the Article Involved.

3. Documents related to the creation process of the Article Involved. The plaintiff submitted a number of documents including its work plan, statistical table of judicial big data, judicial big data analysis report (outline), in-process drafts of the big data report etc. to prove that the Article Involved was created and finally completed under the organization of the plaintiff. The defendant refuses to recognize the authenticity of these evidence, arguing that the work plan for the big data report and the judicial big data analysis report (outline) were created or last stored after the publication of the Article Involved and that neither could the rest of the evidence prove that the Article Involved was created by the plaintiff.

(II) Records of inquest. During the trial of this case, the Court presided over an inquest of relevant information on the Internet with the participation of both the plaintiff and the defendant. The details are described below:

1. Inquest record of the plaintiff’s WeChat official account. The public information of the plaintiff’s WeChat official account mainly shows that the organization name is the plaintiff’s name, the account ID is FilmLaw, the authentication received is WeChat authentication, the subject of the account is the plaintiff (other organization), and the account passed review on October 20, 2017. The defendant confirmed that the Article Involved is in the official account platform but argued that it does not mean the Article Involved is a legal person’s work created by the plaintiff.

2. Inquest record of Wolters Kluwer Database. Since both the plaintiff and the defendant acknowledge that the Wolters Kluwer Database was used during the creation of the Article Involved, the Court organized the plaintiff and the defendant to conduct an inquest on the application of the related functions of the Wolters Kluwer Database. As a professional legal information query tool, Wolters Kluwer Database can provide various legal information services such as laws and regulations, judgments, commonly used legal document templates, practice guides, legal English translation, etc. After opening the Wolters Kluwer Database, the homepage has “Copyright © Wolters Kluwer” at the lower side and offers options including regulations, cases, interpretation, tools, problems, law updates, and practice in turn at the upper side. With the consent of the plaintiff and the defendant, the plaintiff’s agent ad litem logged into the Wolters Kluwer Database through Alpha Intelligent Legal Operating System and carried out the following operations as per the defendant’s instructions: set retrieval conditions in “Wolters Kluwer Cases” with “film” for the keyword, “Beijing courts” for the trial court, and “from January 1, 1995 to December 31, 2017” for the trial date, click search, and then click “Visualization” to generate the Big Data Report 1. Main contents of this report include data sources, visualization of retrieval results (analysis of overall situation, distribution based on causes of action, distribution based on industries, classification of procedures, judgment results, visualization of amounts involved, visualization of trial duration, courts, judges, lawyers and law firms, and frequently cited articles of laws), and appendices. The report also contains visualized analysis graphs in the form of curves, histograms, doughnuts, etc., and analysis of data displayed in the graphs. A comparison of the Article Involved with the Big Data Report 1 by searching corresponding keywords shows that:

(1) Figure 2: Distribution of Number of Cases of the Film Industry Tried by Beijing Courts at all Levels in the Article Involved shows the number of cases of the film industry accepted by 17 courts of Beijing, including among others Chaoyang District People’s Court and Haidian District People’s Court. The figure of the “court” part in the Big Data Report 1 shows the number of cases of the film industry accepted by 5 courts of Beijing, including Chaoyang District People’s Court and Haidian District People’s Court. Both figures suggest that Chaoyang District People’s Court accepted the largest number of cases, followed by Haidian District People’s Court. 

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