After the launch of Windows 7 operating system on October 23, 2009, people were asking each other: “Have you shifted to Win7?”, “Does it work well?” and usually they would follow with: “Are you using a licensed or pirated version?” Also the statement, “Pirated Win7 is sold somewhere,” has become a hot media topic.

 

Apparently, society is quietly changing its neglect and tolerance towards pirated software. There are many reasons, including this year’s enhanced judicial protection.

 

 

April 2009 saw the first-instance judgment against the Shanghai Dareglobal Information Co., Ltd, the listing company which was first forced in China to disclose information because its share-holding subsidiary was accused of using unauthorized Microsoft copyrighted software. Dareglobal was ordered to delete all pirated software and pay the plaintiff compensation in the amount of 400,000 Yuan.

 

In June 2009, the Shenzhen Tsinghua Sware Software Hi-Tech Co., Ltd. sued Beijing-based Tangent Software for the copyright of TArch. Recently, the Shenzhen Municipal Intermediate People’s Court issued its final adjudication after 3 years of litigation. Tangent was ordered to stop the infringement and pay 600,000 Yuan in damages to Sware.

 

July 2009 also witnessed the ruling from the Baoan district court of Shenzhen which ordered the Taiwan-invested CRS Electronic Co., Ltd. to pay 780,000 Yuan to Adobe, Altium and Microsoft for violating their copyrights. This is South China’s largest award case from an end user for using pirated software that involves foreign companies.

 

Of course, the most famous decision in 2009 was on the “Tomato Garden” case which was delivered in August. It is not only China’s first successful criminal case against large-scale piracy, it also resulted in the disappearance of the once popular Tomato Garden operating system, and more importantly, it enhanced copyright awareness among average users.

 

 

Software copyright holders usually tend to cooperate with the government to seek administrative protection rather than turning to judicial protection, because a lawsuit is time-consuming and evidence collection is difficult. More important, compensation for copyright infringement is not high in current Chinese laws and most right holders believe, “it’s not worthwhile to go to court.” A copyright holder jokingly told China IP, “if the Copyright Law raises compensation standards, the wealthiest people in future China would be copyright lawyers.”

 

However, from the many “first” cases in 2009 we can see stricter judicial protection over copyright, with higher compensation for civil cases and heavier sentences for criminal cases.

 

Theoretically, the best way to solve intellectual property right infringement is the judicial way, since intellectual property is a kind of private right. Judging from the trend of intellectual property protection in China, administrative enforcement of law will gradually weaken. Professor Li Shunde from the Intellectual Property Research Center of the Chinese Academy of Social Sciences told China IP: “the separation of intellectual property administration and law enforcement is a trend, which means enforcement resources are only used when national interests are violated. Judicial protection should be sought for the violation of individual interests.”

 

Therefore, 2009 signaled a new era for right holders as judicial departments increased efforts in rights protection.

 

 

Presently, administration is still an important way to protect intellectual property in China. A typical example is the administrative punishment rendered by the Jiangsu Copyright Administration to Viscount Industries (Kansan) Co., Ltd. in 2008. Viscount was fined 800,000 Yuan for commercial use of pirated software, being China’s heaviest administrative penalty for a company using unauthorized software. In the “Tomato Garden” case, the close combination of administration and law was also a rational way to illustrate the value of criminal judicial protection.