(2) The Article Involved uses graphs to display and text to analyze the ratio of enterprises in the industry hiring lawyers and the ratio of enterprises in the industry involved in infringement cases hiring lawyers. The Big Data Report 1 uses graphs to display and text to analyze the number of cases represented by lawyers and law firms. The graphic data and composition and the text analysis of the two are different. Figure 1: Annual Trend Chart (line chart) of the Number of Cases of the Film Industry in the Article Involved shows the number of cases of the film industry each year from 1995 to 2017 and its trend of change, accompanied by an analysis of its cause. The “analysis of overall situation” in the Big Data Report 1 shows the trend of change in the number of cases from 2009 to 2017 (a curve), also accompanied by a text analysis. The two are different in terms of graphic data, graph type and text analysis. The Article Involved also uses graphs to display and text to analyze the range of compensation amount ordered for infringement cases while the Big Data Report 1 does not cover this part.
(3) Retrieval using keywords like “identity,” “plaintiff,” “cause of action,” “subject matter,” “contract” and “labor” shows that the two are different in all these contents.
3. Set retrieval conditions in “Wolters Kluwer Cases” with “film” for the keyword, “Beijing courts” for the trial Court, “from January 1, 1995 to December 31, 2017” for the trial date, and “copyright ownership and infringement dispute” for the cause of action, click search, and then click “Visualization” to generate the Big Data Report 2. Main contents of the Big Data Report 2 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 the data displayed in the graphs. A comparison of the Article Involved with the Big Data Report 2 by searching corresponding keywords shows that: Figure 4: Distribution of the Number of Cases of the Industry with Different Causes of Actions (histogram) in the Article Involved shows the number of cases of 10 different causes of action, including copyright ownership and infringement dispute and dispute over the right of information communication on networks. The “distribution based on causes of action” part in the Big Data Report 2 shows the number of cases (histogram) of 5 different causes of action, including copyright ownership dispute and dispute over infringement of the right of information communication on networks, and their proportions (doughnut). The two are different in graphic data, graph type, graphic analysis dimension, and text analysis content.
Regarding the above inquest results, the plaintiff alleges that the Article Involved is original and not generated by Wolters Kluwer Database on the following grounds: the Article Involved is different from the Big Data Report 1 and 2 automatically generated by the Wolters Kluwer Database in content; as to the graph types, the Article Involved uses normal distribution charts (line charts) while the Big Data Reports 1 and 2 use curves as in fact Wolters Kluwer Database cannot automatically generate normal distribution charts (line charts); and the graphs in the Article Involved were created through artificial improvement of lines and colors on the basis of the basic graphs generated by Wolters Kluwer Database. The plaintiff claims that the Article Involved is its original work created in the following steps: first searching judgments in Wolters Kluwer Database according to certain conditions, then reviewing the documents one by one to exclude irrelevant cases and sort out 2,589 cases of the film industry according to the standard of determining cases of the film industry set by the plaintiff, and making statistical analysis on these selected judgments to form the final Article Involved. During the creation process, statistical analysis was made using Microsoft Excel while graphs were drawn using Microsoft Excel and Microsoft PowerPoint.
The defendant argues that the Article Involved is not original but generated by Wolters Kluwer Database on the following grounds: the Article Involved has the same or similar structure, graph types, case types, distribution based on causes of action, and courts conducting trial, and mode of presenting graphs before text analysis to those of the Big Data Reports 1 and 2 generated automatically by Wolters Kluwer Database; the difference between the Article Involved and the Big Data Reports 1 and 2 is only due to the constant updates of Wolters Kluwer Database; the graphs and data are from Wolters Kluwer Database, not obtained by the plaintiff through investigation, search or collection; neither are the graphs drawn by the plaintiff; the Copyright Law only protects the creation of natural persons, not contents generated by artificial intelligence.
The above facts are supported by the evidence submitted by the plaintiff, court trial records, inquest records, and statements of the parties.
Two, facts related to the plaintiff’s claim that the defendant committed infringement
(I) The plaintiff submitted the following evidence to the Court to prove that the defendant published the article accused of infringement on the Baijiahao platform operated thereby without authorization, thus infringing on the plaintiff’s right of authorship, right of integrity, and right of information communication on networks:
1. The result of searching “judicial big data report of the entertainment industry” in Baidu Search, the screenshot of the webpage publishing the article accused of infringement on Baijiahao platform, and electronic data storage letters of the two issued by Notarization Cloud Platform, to prove that Baijiahao platform published the article accused of infringement on September 10, 2018. The contents shown on the webpage screenshot are basically the same as those of the Article Involved, except that there is no plaintiff’s signature, preface, retrieval overview, the annual trend chart of the number of cases of the film industry of Figure 1, or the annotation part at the end of the Article Involved; below the title is the word “Dianjinss” and on the right side of the article is a brief introduction of Dianjinss which says “a well-known financial commentator, with 10 years of practical experience in securities.” The electronic data storage letters have basically the same contents as the electronic data storage letter mentioned above, except for the website and the electronic data fingerprint. In this case, the plaintiff once claimed that the article accused of infringement was published by the user Dianjinss but later changed its claim to allege it was published by the defendant.
2. Webpage screenshots of More Baidu Products, Baijiahao’s information on Baidu Encyclopedia, Baijiahao Instruction Manual, etc. and their respective electronic data storage letter issued by Notarization Cloud Platform, to prove that the defendant is the operator of Baijiahao. The electronic data storage letters have basically the same basic contents as the electronic data storage letter mentioned above, except for the website and the electronic data fingerprint.
3. Screenshots of other webpages, including Notarization Cloud Platform’s homepage, “About the Platform” page, “Notarization Cloud Platform User Service Agreement” page, and the electronic data storage page of Beijing Guoxin Notary Office;
4. Video of the forensics process of Baijiahao Service Agreement, Baijiahao Instruction Manual, Baijiahao’s Business Model, and Service Agreement and Rules, and their respective IP360 Forensics Data Preservation Certificates, together with Baijiahao’s content-to-be-published review page, to prove that Baijiahao is a platform provided to content creators for their content distribution and monetization and fan management and that the defendant, as the network service provider, has extremely strong control and management capabilities over Baijiahao platform;
5. An evidence showing that the first result of a search of “Judicial Big Data Report of the Entertainment Industry” with Baidu Search is an article entitled “Analysis Report on Judicial Big Data of the Entertainment Industry” with part of the URL being https://baijiahao.com, and the corresponding electronic data storage letter issued by the Notarization Cloud Platform, together with the video of the forensics process of Baijiahao Service Agreement, Baijiahao’s Business Model, and Service Agreement and Rules, to prove that Baidu’s search engine would actively recommend the article accused of infringement,;
6. Baijiahao’s revenue indicator description, together with the video of the forensics process of Baijiahao Service Agreement, Baijiahao Instruction Manual, Baijiahao’s Business Model, and Service Agreement and Rules, to prove that the defendant places advertisements on contents uploaded by Baijiahao platform users and share with them the advertising revenue according to the number of ad clicks generated by specific content and the commission according to the number of commodity orders generated by specific content and that the two are closely linked in content cooperation and benefit sharing.
7. Screenshots of the National Copyright Administration’s news webpages of the Notice on Regulating the Order of Internet Reproducing Copyright and National Copyright Administration Summons 13 Internet Service Providers for a Face-to-face Meeting: Preventing Illegal Reproducing and “Content Laundering,” the Convention on Network Copyright Self-discipline of the Internet Society of China, and their respective IP360 Forensics Data Preservation Certificates.
The plaintiff claims that the above evidence can prove that the defendant has obtained copyright authorization of the content uploaded by users and the right of subsequent development and utilization of copyright. As such, the defendant should thus be the content provider, is at fault, and should bear the tort liability.
(II) Records of inquest. During the trial of this case, the Court organized the plaintiff and the defendant to conduct an inquest into the Notarization Cloud Platform and the plaintiff’s evidence storage on the platform.
1. Main contents of the Notarization Cloud Platform page show that: the platform is an online notarization service platform jointly developed and launched by notarization institutions across the country, which integrates functions of forensics, evidence storage, and certificate issuance. It is developed and operated by Faxin Notarization Cloud (Xiamen) Technology Co., Ltd. to provide technical support for online notarization services of notarization institutions such as online acceptance, electronic data storage, electronic contract signing and intellectual property protection. At present, the platform has established cooperative relations with more than 1,100 notarization institutions in 26 provinces (municipalities and autonomous regions). A query of the ICP filing information of the Notarization Cloud Platform shows that the name of the organizer is Faxin Notarization Cloud (Xiamen) Technology Co., Ltd., the URL of the website’s homepage is www.ezcun.com, and the website was approved on October 18, 2018. After logging into the Notarization Cloud Platform account provided by the plaintiff, it is verified that the above webpage screenshots submitted by the plaintiff are consistent with the corresponding evidences (contents of corresponding webpages) stored on the platform, which is recognized by the defendant and confirmed by the Court.
In response to the inquest results, the defendant argues that the Notarization Cloud Platform is not an authoritative forensics and storage institution, thus the plaintiff’s act does not meet the requirements on forensics and storage of electronic data stated in the Regulations of the Supreme People’s Court on Several Issues Concerning Case Trial by Internet Courts. According to the contents of the electronic data storage letters, an electronic data storage letter is only a receipt for electronic data storage, not to be used as a notarial certificate which needs to be additionally applied for. Since the plaintiff is free to choose any notarization institution that stores the evidence, so the evidence has no credibility. In addition, according to the verification by the defendant, Baijiahao platform did not publish the article accused of infringement. Meanwhile, the defendant argues that Baijiahao platform only provides information storage space services but does not conduct substantive review, editing and recommendation of contents uploaded by users, thus the defendant did not commit any infringement.
The above facts are supported by the plaintiff’ evidence to claim against the defendant’s infringement, the court trial records, inquest records, and statements of the parties.
Three, facts related to the plaintiff’s economic losses and reasonable expenses
1. In order to prove its reasonable expenses of RMB 560 incurred for this case, the plaintiff submitted the following evidences to this Court:
1) A webpage screenshot showing the charging standard of the Notarization Cloud Platform, stating that RMB 2.5 is charged for each webpage that is taken as evidence. The plaintiff took evidence for 12 webpages on this platform and spent a total of RMB 30 for this part.
2) A webpage screenshot showing the charging standard for IP360 process forensics is RMB 500 per time and a webpage screenshot showing the plaintiff has made the payment, based on which the plaintiff claims that it spent RMB 500 for the IP360 process forensics.
3) A webpage screenshot showing the charging standard for IP360 snapshot forensics is RMB 5 per time and a webpage screenshot showing the plaintiff has made the payment, based on which the plaintiff claims that it spent RMB 30 for the IP360 snapshot forensics of 6 evidences.
The defendant refuses to accept the above evidence.
2. The plaintiff claims that the defendant should compensate RMB 10,000 for its economic losses but did not submit evidence. The plaintiff claims that the Article Involved includes 4,511 characters and 15 graphs and that a higher compensation or punitive compensation should be awarded according to the provisions of the Measures for Remuneration Payment for Use of Written Works.
The above facts are supported by the evidence submitted by the plaintiff about the reasonable expenses, court trial records, and statements of the parties.
Four, facts related to the defendant’s claim that it did not commit infringement
The defendant submitted the following evidence to the Court to prove that it did not commit infringement:
1. The printout of the result page of Baidu Search showing that “the article cannot be found for the time being” but not showing the name of the article, to prove that the article accused of infringement is not found on Baijiahao platform, and the defendant indicated that whether the article existed before could not be verified;
2. The Visualization Analysis Report of Beijing’s Culture, Sports and Entertainment Industry created by the defendant using Alpha Intelligent Legal Operating System and searching some selected keywords, to prove that the text and graphs of the Article Involved were also generated by similar database software but not collected or compiled by the plaintiff itself.
3. Screenshots of the Article Involved showing that the Article Involved contains words “Wolters Kluwer,” to argue that the plaintiff used the software to automatically generate the Article Involved;
4. Screenshots of relevant webpages of Beijing Guoxin Notary Office showing the notarization process of the Notary Office, to prove that the Notary Office and the Notarization Cloud Platform are two different organizations.
The plaintiff alleges that the above evidence can only prove that the article accused of infringement has been deleted but cannot prove that the article had not been published, and that the reports of other contents are irrelevant to the case.
The above facts are supported by the evidence submitted by the defendant, the court trial records, and statements of the parties.
This Court holds that:
The plaintiff claims that the defendant has infringed the copyright of the Article Involved while the defendant argues that the Article Involved does not constitute a work, that the plaintiff does not enjoy the rights of the Article Involved, and that the defendant did not provide the Article Involved to the public. Therefore, the focuses of the dispute in this case are: first, whether the plaintiff is the proper subject; second, whether the defendant has committed the alleged infringement act; and third, whether the defendant’s argument that it did not commit infringement is well founded. The Court will make judgments separately based on existing evidence.
First, Whether the Plaintiff Is the Proper Subject in the Case?
The term “works” as mentioned in the Copyright Law refers to intellectual achievements in the fields of literature, art and science that are original and can be reproduced in some tangible form. Since the plaintiff claims that the Article Involved constitutes graphic works and written works, the Court will review the two points respectively.
(I) Does the graphs claimed by the plaintiff constitute graphic works?
Graphic works refer to drawings of engineering designs and product designs prepared for construction and production, as well as maps and sketches that reflect geographical phenomena or illustrate the principle or structure of things. To constitute works, graphs need to be original. So technical schemes, practical functions, operation methods etc. contained in drawings of engineering designs and product designs, as well as objective geographical elements and facts contained in maps and sketches, are not protected by the Copyright Law. In this case, the relevant graphs were made by the plaintiff based on the collected data and using relevant software. Although they show different shapes due to data changes, these differences are derived from data differences rather than creation. For the same data, different users would obtain the same graphs if applying the same software for processing; even if different software products are used, the expression of the same data should be the same as long as users display data in conventional graph types. Thus the above graphs do not meet the originality requirement of graphic works. The plaintiff claimed that it has artificially beautified the lines and colors of the above graphs but failed to submit evidence to prove it. During an inquest, the Court compared the graphs in the Article Involved with the relevant figures in Big Data Reports 1 and 2 generated by Wolters Kluwer Database. The graph in the Article Involved on the distribution of the number of cases of the film industry accepted by Beijing courts at all levels and the figure in the “Court” part of the Big Data Report 1 are both histograms and both show that Chaoyang District People’s Court accepted the largest number of cases, followed by Haidian District People’s Court. But they show different numbers of courts and different numbers of cases accepted by each court. In addition to the differences between the above two graphs, other graphs in the Article Involved and other graphs in the Big Data Reports 1 and 2 are also different in terms of graphic data and graph types. However, these differences are caused by the selection of different data, software products or graph types, and cannot reflect the original expression of the plaintiff. Therefore, the graphs in the Article Involved do not constitute graphic works, the plaintiff’s claim of copyright on these graphs are not well founded, and the Court will not support the plaintiff’s claim in this respect.
Photo from: 6199pic.com
