COPYRIGHT CIVAL
China IP,[Copyright]
COPYRIGHT CIVAL
CASE 1
COPYRIGHT INFRINGEMENT CASE INVOLVING CHIUNG YAO AGAINST YU ZHENG First Instance Case No.: (2014) San Zhong Min Chu Zi No. 07916 Second Instance Case No.: (2015) Gao Min (Zhi) Zhong Zi No. 1039
[Synopsis]
Chen Zhe, pen name Chiung Yao, completed her playbook Plum Blossom Scar in October 1992, not published in paper; a Taiwan local film company Yiren Communications Co., Ltd. shot a TV play in the same name based on this playbook, and this film was first broadcasted on TV in Taiwan on October 13, 1993, and then broadcasted on TV in Mainland China on April 13, 1994. The TV programs are highly coherent with the playbook. The novel Plum Blossom Scar was completed on the basis of the playbook on June 30, 1993, and published in Taiwan from September 15, 1993, and then published in Mainland China in the same year, whose main plots are substantially the same with the playbook. The novel’s author is also Chen Zhe. Yu Zheng is author of The Palace: the Lost Daughter , of 20 episodes, which was completed on July 17, 2012, and published on April 8, 2014. The TV series play The Palace: the Lost Daughter was shot on the basis of Yu Zheng’s playbook The Palace: the Lost Daughter. The TV play’s screenwriter is Yu Zheng too, and the producers are respectively: Hunan ETV, Huanyu, Wanda, Xingrui. The infringing TV play has two versions: online version of 44 episodes, and TV version of 63 episodes. The TV version was first broadcasted on Hunan ETV. Compared with Plum Blossom Scar, The Palace: the Lost Daughter is more complicated with more personal relations and clues. Chen’s claims mainly focus on the first half of the playbook The Palace: the Lost Daughter.
The first instance court finds that the playbook The Palace: the Lost Daughter infringes the plaintiff’s adaptation right to the playbook Plum Blossom Scar, and the TV plays The Palace: the Lost Daughter infringes the plaintiff’s filming right, so the court decides that the defendants should stop their infringements, make public apology, to eliminate the negative influence; compensate the plaintiff for economic loss and reasonable legal cost totalling RMB5 million. All defendants filed appeal.The second instance court upheld the original verdict.
[Judge’s Comment]
This case of film piracy attracts great attentions of the public, with three typical effects. (1) The case clarifies the standard to distinguish ideas and expressions in literary works. The expression of literary works is not only reflected in the words, but also in the stories.However, personality setting and personal relations, specific events, developments and sequence among other plots, cannot be protected by the copyright law unless they reach a certain degree that is, the plotting, structuring and progress design of the works reflect the author’s unique choice, judgment and balance. To determine the expression of literary works is a continuing process of abstraction and filtering. (2) The case clarifies the standard to judge substantial similarity. Copyright infringement includes two elements “contact” and “substantial similarity”.In literature, the link of episodes, the logic sequence string the plots closely into a full set of personalised expression. Such integration of specific personality setting, plot structure and inherent logic relations can be an expression protected by the Copyright Law. If the infringing work contains specific expression and the close inherent plots reaching a certain quantity or percentage, it can constitute substantial similarity; or if the infringing work contains close inherent plots reaching an enough percentage of the protected work, even if the infringing plots account for a small percentage of the infringing work, the infringing work can constitute substantial similarity. (3) This case introduces expert advisor. This case is the first copyright infringement case that has introduced expert advisor, to make the trial and the judgment fit industry characteristics and the law of creation.
CASE 2
COPYRIGHT INFRINGEMENT DISPUTE ON RED DETACHMENT OF WOMEN
First Instance Case No.: (2012) Xi Min Chu Zi No. 1240
[Synopsis]
In 1961, Liang Xin’s playbook Red Detachment of Women 《红色娘子军》 was shot into a film in the same name and distributed by Shanghai Tianma Film Studio. In 1964, the playbook was adapted into a ballet play in the same name and performed publicly by the National Ballet of China. On June 26, 1993, Liang Xin entered an agreement under the Copyright Law implemented as of June 1991, with the National Ballet, to define that Ballet Red Detachment of Women is adapted from Liang Xin’s playbook Red Detachment of Women, with the permission and assistance of Liang Xin. According to prevailing laws and regulations then, the licence should expire in June 2003. Therefore, Liang Xin claims that National Ballet should stop its infringement, that is, National Ballet should not perform the ballet Red Detachment of Women without a new licence; and should apologize in public; compensate him for economic loss RMB500 thousand and legal cost RMB50 thousand.
The first instance court finds that National Ballet adapted the playbook into ballet opera with Liang Xin’s permission in 1964. Although there was no written form, the copyright licensing contract is still effective according to existing evidence. On June 1993, the mutual agreement was not a licencing contract, but a compensation agreement; After June 2003, National Ballet continued to perform the ballet Red Detachment of Women and this behaviour did not constitute infringement on Liang Xin’s copyright, but should pay Liang Xin as compensation for certain economic loss incurred by Liang. As to authorship, National Ballet did not show Liang Xin’s name in its official website in respect to the alleged ballet, and this behaviour constitutes infringement to Liang’s authorship, and should apologize.Accordingly, the court decides that National Ballet should compensate Liang Xin for economic loss and reasonable legal cost totalling RMB120 thousand, and should apologize to Liang Xin in writing. Both the plaintiff and defendant filed appeal after the first instance judgment/ However, the second instance court upheld the original verdict.
[Judge’s Comment]
In this case, the court analyses whether the mutual agreement is a licence contract or a compensation agreement, based on the facts of permission and assistance, considering specific political, legal and social conditions before the issuance of Copyright Law of China This judgment not only strictly performs the legislative spirits of the Copyright Law, but also considers specific political and cultural factors in special historic period, analyses and identifies the licencing behaviour of adaptation right and performance right of communist classic ballet Red Detachment of Women, with good legal effects and social benefits.This case will be served as a good reference for future disputes in copyright of similar communist classic works.
CASE 3
COPYRIGHT INFRINGEMENT AND UNFAIR COMPETITION CASE ON SUPER MT
First Instance Case No.: (2014) Jing Zhi Min Chu Zi No. 1
[Synopsis]
Locojoy is the copyright owner of mobile games I Am MT Online, I Am MT2 (hereinafter collectively referred to as “I Am MT”). The foregoing games are adapted from series 3D anime I Am MT. Locojoy has the exclusive licensed use right to the game names, character names, and has the fine-art copyright to the character images. Locojoy claims that the three defendants without its permission use the similar game names, character names and character images in Super MT, which infringes Locojoy’s copyright. Moreover, the three defendants pirate the game name Super MT from I Am MT, and the characters in the two games are very similar. In the promotion of the infringing game, the defendants use the slogans related to the game I Am MT. Such behaviours constitute unfair competition, in violation of Article 5.2 and Article 9.1 of the Anti-Unfair Competition Law of China.
The court finds that as game names and character names don’t constitute works, the alleged game does not use the original expression of Locojoy in its adaptation, the three defendants don’t infringe Locojoy’s copyright; Locojoy’s game names and character names constitute proprietary names on mobile game service, so the three defendants’ behaviour of offering download and publicity of the alleged game will constitute unauthorised use of proprietary names of original famous service. The three defendants’ promotional information is not objective fact, and constitutes false propaganda. Therefore, this court decides that the three defendants should stop unfair competition, and compensate the plaintiff for economic loss and reasonable cost totalling RMB535 thousand.
[Judge’s Comment]
As a branch of emerging culture industry, mobile game is a product of culture-tech integration, with huge space for development and market prospect, winning extensive attentions. This case involves mobile game copyright infringement and unfair competition. The alleged game Super MT use similar game names, character name, game propaganda, APP avatar and other aspects with the game I Am MT, resulting in trivial and complicated facts, involving complex legal problems. This case has made detailed analysis and explanation on the mobile game copyright evidence responsibilities allocation, whether the game names, character names and other short words/ phrases constitute literary works, the copyright protection for adapted works, recognition of the effects of defective notary certificate, whether mobile game names can constitute proprietary names, recognition of false propaganda and other legal problems.This case clarifies the mindset and direction of mobile game IP protection, and plays a demonstrative role for the healthy and orderly development of mobile game industry driven by judicial protection.
CASE 4
COPYRIGHT DISPUTE ON REPRODUCTION AND DISTRIBUTION INVOLVING EPOCH CO., LTD. AGAINST HUANG ET AL.
First Instance Case No.: (2013) Pu Min San (Zhi) Chu Zi No. 537 Second Instance Case No.: (2014) Hu Yi Zhong Min Wu (Zhi) Zhong Zi No. 107
[Keywords]
This case involves mainly the copyright protection for foreign practical artworks, such as, whether foreign practical artworks can be protected by the Copyright Law of China? If yes, under what conditions? This judgment not only displays China’s efforts in the protection of foreign copyright holders’ right, but also guides similar cases.
[Synopsis]
The plaintiff Epoch is a famous toy developer, manufacturer and marketer in Japan. It owes the copyright of “Forest Family Series Toys” with 8 artworks, including Doll House, Baby Play Park, Caravan & Pony, Pony & Trap. In September 2007 and September 2009, Huang’s Wangqixiang Factory was punished for infringing the foregoing copyright by Shantou Copyright Bureau of Guangdong Province respectively. In July 2013, the plaintiff found that Wanqixiang Factory infringed its copyright again, then the plaintiff purchased 8 infringing products “Happy Family Series Toys” of Duyi corresponding to its original 8 artworks respectively, and filed a litigation, claiming that the two defendants should stop infringement and compensate the plaintiff for economic loss and reasonable expenses totalling RMB1 million. Durig the proceedings, the plaintiff withdrew its claim for Terrace House.
Pudong Court finds that both Japan where the plaintiff is resident and China are members of Berne Convention, so China is liable for the protection of works of a resident in a member country. Although there is no category of practical artworks in China’s Copyright Law, Berne Convention has clearly defined that the subject of protection includes practical artworks. In China’s Provisions on the Implementation of the International Copyright Treaties, it is clearly stated that foreign practical artworks will be protected by Chinese copyright laws and regulations within 25 years from the completion of artworks. Therefore, practical artworks of a resident in a member country of the Convention shall be protected by Chinese laws. The works that the plaintiff claims right to are original, reproductive, practical and artistic, which are constituents of practical artworks, and thus should be protected as practical artworks.According to “contact + substantial similarity” principle of copyright infringement recognition, Wanqixiang Factory’s production, sales of alleged infringing products constitute infringement on the plaintiff’s production/distribution right to the claimed works. Therefore, the Court orders that the two defendants should stop their infringement immediately, and i n f r i nger Huang should compensate the plaintiff for economic loss and reasonable expenses totalling RMB200 thousand. The second instance judgment dismissed the defendants’ appeal and upheld the original verdict.
[Judge’s Comment]
In this case, the plaintiff is a famous toy developer, manufacturer and marketer in Japan and even the world.Its “Forest Family Series Toys” have won many great awards home and abroad. As there is no artwork category in the provisions of the Copyright Law of China and the plaintiff is foreign company, this case attracts extensive attention. The Court, according to Berne Convention and Chinese Provisions on the Implementation of the International Copyright Treaties, clarifies that foreign practical artworks are also subject of protection under the Copyright Law of China, and meanwhile the Court clarifies the constituents of the practical artworks, that is, originality, reproductivity, practicality and artistry. The plaintiff’s claimed works meet such requirements for above constituents, and shall be protected as practical artworks.
CASE 5
A BITE OF CHINA II INFORMATION NETWORK COMMUNICATION RIGHT INFRINGEMENT
First Instance Case No.: (2014) Shi Min (Zhi) Chu Zi No. 8807 Second Instance Case No.: (2015) Jing Zhi Min Zhong Zi No. 1444
[Keywords]
Search link service identification in the case of information network communication right.
[Synopsis]
CCTV International has the information network communication right of the television series A Bite of China II (the involved program). CCTV International through iPhone5 handset found that Douguo Information Co., Ltd. (Douguo Info) and Douguo Yangtian Co., Ltd.(Douguo Yangtian) jointly developed an APP named “A Bite of China II” (the involved software) on the App Store, to provide unauthorized online play services of the involved program to the public. CCTV International claims that Douguo Info and Douguo Yabgtian is not authorized to provide the public with the involved program via Internet, which seriously infringes the legitimate rights and interests of CCTV International, and causes significant economic losses to CCTV International, and therefore Douguo Info and Douguo Yangtian should stop their infringement immediately, and compensate CCTV International for economic loss RMB1 million and reasonable expenses for litigation RMB50 thousand. Douguo Info and Douguo Yangtian defend that this is evidence to prove that the involved program is from Sohu video website (tv.sohu.com), the involved software only provides search link service and thus the claims of CCTV International should be dismissed.
The Court finds that the notarized evidence of captured program submitted by Douguo Info and Douguo Yangtian is nearly half year later than the notarised evidence of infringement submitted by CCTV International, but the “updated” date shown in the involved software is earlier than that shown in the notarized evidence submitted by CCTV International, the possibility cannot be excluded that the defendants might have modified the involved software, so the Court deems their notarized evidence of captured program as inadmissible. In this case, Douguo Info and Douguo Tianyang defend that they merely provide link service, but they fail to submit the evidence. CCTV International’s evidence shows that the involved program has not left the involved software during play, nor has it shown any jump to an absolute network address of Sohu video website, so the court will not support the defence.
The involved program video shows a watermark of “Sohu video”, but the watermark is not sufficient to prove this involved program is linked from “Sohu video”. Meanwhile, the evidences show that “Sohu video” website has not sublicensed its information network communication right to the involved programme, so the evidence submitted by CCTV International is a highly probable evidence, and it is determined that Douguo Info and Douguo Yangtian’s online play of involved programme on involved software infringes CCTV International’s exclusive information network communication right to the involved programme, and the defendants should be jointly liable for stopping their infringement and compensating the plaintiff for loss. Therefore, the Court decides that Douguo Info and Douguo Yangtian should stop the online play service on mobile APP “A Bite of China II”, and jointly compensate CCTV International for economic loss RMB250 thousand and reasonable legal costs RMB23 thousand.
[Judge’s Comment]
In the cases of information network communication right disputes, if the plaintiff has preliminary evidence to prove the network service provider has provided relevant works, performance, audio-video products, and the network service provider is able to prove it only provides network service, without fault, then the local court will not determine the case as infringement.The key of this case is whether the behaviour of Douguo Info and Douguo Yangtian to offer mobile APP software “A Bite of China II” is solely for the purpose of search link service.Firstly, in evidence aspect, the Court applies the “preponderance of the evidence” law, that is, when one party’s evidence has reached a high degree of probability, it will be admitted.Since Douguo Info and Douguo Yangtian have not made reasonable explanation for the defects in the defending evidence, so the Court does not admit the defendants’ evidence, but admits the plaintiff’s evidence.%s/ /\r\r/gcSecondly, in legal entity recognition, the Court considers following factors: The involved programme has not left the involved software during play, nor has it shown any jump to an absolute network address of Sohu video website; although the involved software plays the programme with watermark “Sohu video”, it is not enough to prove such play is linked from “Sohu video”; “Sohu video” website has not sub-licensed the information network communication right to the programme played on the infringing software. Finally, the court determines that Douguo Info and Douguo Yangtian offers online play of the programme through the infringing software. After the consideration of commercial value, play period, licence fee and objective willfulness, lasting time and other factors, the court determines at discretion the compensation amount RMB273 thousand.
This case is involved in the CCTV programme A Bite of China II, a famous programme in China with extensive public attentions. The judgment has protected copyright owner’s legal interests effectively, and enlarged the protection in this case, having good social publicity.
CASE 6
INFORMATION NETWORK COMMUNICATION RIGHT DISPUTE INVOLVING TSINGHUA TONGFANG CO., LTD AGAINST HUNAN HAPPY SUNSHINE INTERACTIVE ENTERTAINMENT MEDIA CO., LTD.
First Instance No.: (2014) Hai Min (Zhi) Chu Zi No. 19958 Second Instance No.: (2015) Jing Zhi Min Zhong Zi No. 560
[Keywords]
The determination of server standard in the behaviour of information network communication and the fault of directional link provider.
[Synopsis]
In this case, the plaintiff is the owner of TV program copyright, the defendant manufactures and sells Tongfang settop box offering Rabbit Video software that provide deep linking service for users of the involved programme.However, Rabbit Video does not provide whole network search link, but offers linkage to a few video websites, edits the linked information, and makes a catalogue and introduction of programmes. The plaintiff claims that the defendant’s above behaviour is infringing the plaintiff’s copyright. The court finds that according to server standard, although the defendant’s behaviour is not information network communication behaviour, its offering of links without permission from the linked websites constitutes a helping behaviour, and subjectively it should have been aware of its infringement on the linked websites, therefore, the defendant’s behaviour constitutes a helping infringement behaviour, and the court decides that the defendant should stop infringement and compensate the plaintiff for loss RMB8 thousand.
[Judge’s Comment]
The server standard and user perception standard of information network communication behaviour was debated hotly by the academia and the judiciary community. In 2010, Beijing Higher People’s Court issued Directive Opinions on Cases of Network Copyright Disputes (I), and in 2013, the Supreme People’s Court issued Provision on Several Issues of Applicable Laws in Judging Civil Cases of Disputes Involving the Right of Information Online Communication, and in judicial practices, a consensus has been formed in this respect.Therefore, in this case, the Court applies the server standard, and makes a systematic explanation on the server standard, in the context of legislative origin and judicial practice, and this approach is only for the purpose of making the parties and the public have a better understanding of server standard, instead of creating a new standard.
In addit ion, in the Internet environment where licensed websites and fake websites are both existing, in order to prevent the linkers from evading responsibilities, this case sets a higher duty of care for active directional link behaviour by specific link forms and linked content features, points out that active directional link service providers should bear higher duty of care for video content, who is obliged to understand whether the content of communication on the linked website is licensed content or not. If the link service provider tries its best to understand the content to be linked which however turns out to be illegally transmitted, the provider should not be determined as subjective fault. In this case, the defendant has not performed the foregoing duty of care, so it has subjective fault, and its behaviour constitutes a helping infringement behaviour.
CASE 7
COPYRIGHT DISPUTE ON REPRODUCTION AND ADAPTATION INVOLVING AI SHANGHAI AGAINST YAYA
First Instance Case No.: (2014) Pu Min San (Zhi) Chu Zi No. 1097 Second Instance Case No.: (2015) Hu Zhi Min Zhong Zi No. 614
[Keywords]
Copyright protection is intended to protect the expression of independent works and prohibit unauthorized use for market value on one hand, and ensure the right of access to works, so that the public will have the freedom to use the works unrestricted by copyright. This judgment fully respects the author’s legal rights, defines the scope of protection reasonably, encourages culture extensive communication, and maintains public interests.
[Synopsis]
Doraemon cartoon image (Figure 1) has global visibility, and in Chinese cartoons and publications there is also graphic and lettering of Doraemon.The two defendants jointly operate Doraemon software and use “Dingdong Community” software graphic (Figure 2) and lettering. The plaintiff claims that the foregoing software graphic and lettering of the defendants infringes the plaintiff’s reproduction right and adaptation right to Doraemon cartoon image and Doraemon lettering, so the defendants should stop the use of Doraemon image elements or features, make a statement in newspaper to eliminate the bad effects, and compensate the plaintiff RMB2 million and reasonable cost RMB50 thousand. Defendant Yaya defends that the alleged infringing “Ding-dong Community” is not operated by it.
Defendant 100.ME defends that Doraemon’s originality is represented by its integral image, instead of collar, bell, pocket and other elements claimed by the plaintiff, what is more, colour, perspective and shape are not protected by the Copyright Law; the defendants’ software graphic and lettering are both original, and shall not constitute a substantial similarity with Doraemon cartoon image and lettering.
Pudong Court finds that the torso section of Doraemon cartoon image, which the Plaintiff claims right to, if is of low originality, and shall not Figure 1 Figure 2 constitute a substantial similarity with the “Ding-dong Community” software graphic, moreover, the works between the plaintiff and the defendants are distinct in many ways apparently, so if the plaintiff’s works were protected, other artists’ freedom to creation to legal extent will be impeded. The similarity between the defendants’ “Dingdong Community” lettering and Doraemon lettering falls in public domain of fine-art works, and shall not bear originality, moreover, the two works are obviously different, and cannot constitute substantial similarity. Furthermore, the plaintiff fails to present any evidence to prove its claim for copyright to graphic/lettering. In summary, the two defendants’ behaviour does not constitute an infringement on the reproduction right to above works, and the two defendants’ works as new works not based on the plaintiff’s works, does not constitute infringement on the plaintiff’s adaptation right. Therefore, the Court dismissed the plaintiff’s all claims. After the court decision, the plaintiff filed an appeal, and then withdrew it in the second instance proceedings. The first instance judgment has taken legal effect.
[Judge’s Comment]
This case involves substantial similarity of fine arts. The judgment points out that i f the alleged infringing works plagiarised part of the plaintiff’s works, the more original such part is, the higher possibility this plagiarism would be determined as infringement. In specific comparison, we should first determine to what extent the original works are identical or similar to the alleged infringing works, in terms of line, shape, shade, colour and other elements, then delete the part relating to thoughts, review whether the remaining elements fall into the public domain, and determine the similarity between the filtered identical or similar parts. On this basis, by entire comparison, we will judge whether it is a substantial similarity.
CASE 8
COPYRIGHT DISPUTE ON REPRODUCTION AND DISTRIBUTION INVOLVING BLUE BOX AGAINST DUMEX AND OTHERS
First Instance Case No.: (2014) Hu Min San (Zhi) Chu Zi No. 67 Second Instance Case No.: (2015) Hu Yi Zhong Min Wu (Zhi) Zhong Zi No. 30
[Keywords]
This case clarifies that the subject of copyright protection in artworks is the artistic expression of originality which is separate from practicality.
[Synopsis]
In 2010, the plaintiff completed the design of “bear recreation luggage cart”, which is composed of two parts: a panel with a bear face, and a box with four wheels. Open the bear-face panel and stretch the box flat when the four wheels are on the ground, the cart is formed for riding.Close the panel, pull out the handle, a trolley case will be formed for use.This product was displayed at Beijing International Toys & Preschool Tools Exhibition in April 2012. However, in January 2013, the plaintiff found on the market there were promotions of Dumex that if you purchased a certain amount of Dumex milk powder, you would obtain a gift of “children walking-aid trolley” for free, so the plaintiff notarised the purchase process. This “children walking-aid trolley” is almost the same with “bear recreation luggage cart”, except the colour. On the package of the gift, it is marked that the manufacturer is Klupp. Aishitu employee obtained the sample of “bear recreation luggage cart” from a distributor of the plaintiff in July 2012, and Aishitu is related to Lovhome. The plaintiff claims that it has the copyright of the overall product of “bear recreation luggage cart”, the four infringing defendants should stop their infringement and compensate the plaintiff for economic loss and reasonable expenses. Pudong Court finds that the concerned product is a practical artwork. The plaintiff has evidence to prove that it has the copyright of the concerned product. The Copyright Law of China protects the bearface part of the concerned product.Klupp reproduces and distributes the product without the plaintiff’s permission, which behaviour directly infringes the plaintiff’s copyright; as Lovhome is closely related to Aishitu, it is determined that Lovhome has procured and sold the infringing products knowing the plaintiff’s product information, which infringes the plaintiff’s distribution right but does not suffice to constitute conspiracy with Klupp; Klupp is jointly and separately liable for Lovhome’s infringement; Aishitu’s offering the plaintiff’s product information to Lovhome does not infringe copyright; Dumex’s procuring the infringing products as gifts in promotion infringes the plaintiff’s distribution right, and should stop infringement, but it defenced that the gifts have legal source is established.The first instance judgment is that, Dumex, Lovhome and Klupp should immediately stop their respective infringement on the plaintiff’s reproduction/distribution right; Lovhome should compensate the plaintiff Blue Box for economic loss RMB50 thousand and reasonable expenses RMB15 thousand; Klupp should compensate Blue Box for economic loss RMB200 thousand and reasonable expenses RMB60 thousand, and should be jointly and separately liable for Lovhome’s compensation portion; the Court dismissed other claims of the plaintiff. After the judgment, Klupp refused the decision, and made an appeal, but the second instance court dismissed the appeal and upheld the original verdict.
[Judge’s Comment]
This case involves artwork protection. The Copyright Law of China has not clearly defined the copyright protection for practical artworks. In Chinese practice of administrative proceedings and judicial proceedings under the Copyright Law, there are examples where the Copyright Law is applicable, but the protection is limited. For example, the condition for protection, i.e. the condition for recognising an artwork as a practical artwork, is limited; the scope of protection for practical artwork is limited. Such limitations are mainly to better comply with basic principles of the Copyright Law, and strictly reflect the functional boundaries of different laws and systems. This judgment has made relatively detailed analysis on the conditions and scope of practical artwork protection, studied joint infringement behaviour and the infringers’ subjective fault and specific behaviour features, which can be referred to for similar cases.
CASE 9
ADOBE SOFTWARE COPYRIGHT DISPUTE & EVIDENCE PRESERVATION CASE
[Synopsis]
The plaintiffs Adobe and Autodesk claim that they have the legal copyrights of 7 computer softwares, including Adobe Photoshop (image processing software), Adobe Illustrator (professional vector drawing tool), Adobe Flash (2D animation software), Adobe After Effects (AE) (Video Effects synthesis software), Adobe Dreamweaver (web editor), Autodesk Maya (3D animation software), Autodesk 3ds Max (3D animation rendering and production software), while the defendants Dongfang Fengxing (Beijing) Media Culture Co., Ltd. and Dongfang Fengxing (Beijing) Commerce & Trade Co., Ltd. make unauthorised reproduction, installation and commercial application of the above copyrighted software series, infringe the copyrights of the plaintiffs, and should bear relevant liabilities.Beijing Intellectual Property Court accepts the above case, Adobe and Autodesk apply for evidence preservation for the information of illegal reproduction, installation and use of the above software series on the computers within the defendants’ business premises, and related information of the involved computers and software.
After fully considering the difficulty of software end-user infringement evidence, and based on the preliminary clues of infringement evidence submitted by the copyright owner, this court decided on October 21, 2015 that, 300 computers and related software within the business premises of the defendants are seized for evidence preservation.
[Judge’s Comment]
To strengthen the judicial protection for intellectual property rights, it is not only required to establish a compensation calculating mechanism that follows market rules and really satisfies the requirements for rights protection, increase the amount of compensation for infringement, and increase timeliness and effectiveness of judicial relief, by active and lawful application of evidence preservation and other measures. In this case, the evidence preservation timely fixes the evidence and fully strengthens the judicial protection for IP after verifying that the application for evidence preservation is eligible.
CASE 10
COPYRIGHT INFRINGEMENT DISPUTE ON TRAVEL CHANNEL’S LOGO
[Synopsis]
Aimeide’s logo and trademark is very similar to the logo of Travel Channel. Travel Channel claims that the defendants’ behaviour infringes its copyright to the logo, and the defendants should stop their infringement and compensate Aimede for economic loss and reasonable cost totalling RMB2 million.
Aimeide has submitted dozens of evidences to prove that the logo is designed and used first by it. The court finds that the contact telephone numbers stated in some contracts were not initiated at that time or were not in 8-digit number, which contradicts with the real conditions at that time. Aimeide admits that some contracts were backdated.
After this finding, Aimeide submits a certificate issued by National Leather Industry Standardization Technical Committee and National Leather Products Quality Supervision and Inspection Center. The certificate states that in 2003, Aimeide luggage case products were inspected in the National Leather Products Quality Supervision and Inspection Center, and there is a specimen stored in the warehouse which carries the alleged logo. This date is earlier than the date when the logo was used by Travel Channel. The court has visited the Committee and the Center, and the secretary general of the Committee and the deputy director of the Center Mr. Tian insists that the said luggage case was inspected and stored by the Center indeed. When the court finds that the alleged logo is printed on the concealed part of the luggage case, and Aimeide has applied for trademark registration in 2005 and registered the trademark in 2008.In follow-up investigations, Mr.Tian confesses to the court that his testimony is abetted by Mr. Zhao who delivered the luggage case in the warehouse of the Center actually in 2014, and the operator of the Center appears at the court to confirm this.
The court finds that Aimeide’s evidences are inadmissible, and Aimeide infringes the copyright of Travel Channel. Considering the originality and fame of the logo, Aimeide’s use of the logo, duration of such use, company size, and other factors, Aimeide profits a lot from the infringement, so Aimeide should stop the infringement and compensate Travel Channel for economic loss RMB2 million. At the same time, the first instance court determines that the critical evidences submitted by Aimeide are false evidence, and the Committee’s testimony is false too, the above behaviours are seriously incorrect, exerting a serious impediment to a civil actions, so the foregoing two defendants should be fined RMB1 million and RMB100 thousand respectively, and Mr. Zhao should be fined RMB10 thousand.
[Judge’s Comment]
To punish bad faith litigation is a due justice to strengthen the judicial protection of intellectual property rights. After the operation of the new Civil Procedure Law of China, Beijing Court penalises the bad-faith party for the amount exceeding the limit, which is also the highest amount of single penalty all over China. The defendant Aimeide submits a large number of false critical evidences, and this forgery is found to become intensified after the submission of forged false evidence and testimony.If such forgery were undetected, the judgment would reverse. The above behaviours interfere with the order of proceedings, waste judicial resources, harm the interests of the other party, ignores the judicial authority, therefore, the court imposes a fine of RMB1 million on the forger. The Committee, as a nationwide industry organisation, dares to provide false evidences and testimony for Aimeide, a business partner, after signing integrity guarantee for the court.This seriously interferes with the judicial order, so the court decides to punish the Committee for RMB100 thousand, and punish the Committee principal Mr. Zhao who forges the false evidences and false testimony directly, for RMB10 thousand.
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