A Case Concerning Tort on the Copyright of "AUTO KATACOG"

Plaintiff: Germany Auto-motor News International Press Group (abbreviated as Auto-motor Press Group)

Plaintiff: Germany Auto-motor Press Combined Joint Company Ltd. (abbreviated as Auto-motor Press Joint Company)

Defendant: A Certain Publishing House in Beijing (abbreviated as Publishing House)

Defendant: A Certain Printing Company Ltd. (abbreviated as Printing Company)

Defendant: A Certain Color Printing House in Beijing (abbreviated as Color Printing House)

Cause of action: Dispute regarding infringement on the copyright of edited works

Series number: (1996) No. 36 Yizhongzhichuzi of Beijing First Intermediate People's Court

Details of the case:

Charge and Defense Statement

In May 1996, the plaintiff, Auto-motor Press Group and Auto-motor Press Joint Company brought suit against Publishing House, Printing Company and Color Printing House concerning infringement of copyright to Beijing's First Intermediate People's Court.

The Auto-motor Press Group and Auto-motor Press Joint Company charged that the book "AUTO KATACOG" was their legal publication. Without the agreement and authorization of Auto-motor Press Group and Auto-motor Press Joint Company, without payment and without the indication of the sources. Publishing House copied the words, pictures, design, binding and layout of the book "AUTO KATACOG", of which Auto-motor Press Group and Auto-motor Press Joint Company enjoyed the copyright, and edited and translated the publication in their own name, which is a tort on the copyright of "AUTO KATACOG" enjoyed by the AUTO-motor Press Joint Company enjoyed the copyright, and edited and translated the publication in their motor Press Group and Auto-motor Press Group and Auto-motor Press Joint Company. When the Printing Company and the Color Printing House undertook the commissioned printing business, they didn't examine or go through the procedures for commissioned printing and undertaken printing business, according to the national law and regulations. This practice plays an important role in this pirating occurrence, thus they should be co-responsible for the tort. The lawsuit brought by the Auto-motor Press Group and Auto-motor Press Joint Company demands: 1) stopping the infringement, and at the same time burning the pirated publications; 2) making a public apology to the Auto-motor Press Group and Auto-motor Press Joint Company in the nation-wide issued non-expert newspapers and periodicals to eliminate the bad effect; 3) compensating an economic loss of 400,000 RMB.

The Publishing House defended that the book "Senior Auto Circle" is an illegal and unauthorized publication, pirating the name of Publishing House and the book number. The Publishing House itself is not a pirate, but a victim, along with the Auto-motor Press Group and Auto-motor Press Joint Company. The Publishing House has already appealed to certain administrative departments for a request to make an investigation and prosecution.

The Printing Company argued that it should not be the co-defendant in the case, thereby not bearing the responsibility of the tort. The reason is as follows: 1) The Publishing House has never asked the Printing Company to print "Senior Auto Circle", thereby the Printing Company certainly would not ask any person or any units to print "Senior Auto Circle". 2) A certain person named Xu in the Printing Company was only in charge of the production management within the company. He was not responsible for the business of commissioned printing In Nov. 1995, he, without authorization, forged the company's seal to stamp on the company's "printing out-contract shadow notice". Moreover via private channels and in the name of printing articles of "AUTO ADVERTISEMENT", he commissioned the production section of the Color Printing House to print the inner pages of "Senior Auto Circle". His personal act violated "Management Interim Measures for Beijing's Printing Business" and he has already been punished by relative public order administrations implemented by the relevant unit. 3) The name of the printing unit on the copyright page of "Senior Auto Circle" is not the name registered by the Printing Company.

The Color Printing House defended that: 1) The facts and proof of its tort supplied by the Auto-motor Press Group and Auto-motor Press Joint Company are not clear or adequate. The conclusion is based on a) The Auto-motor Press Group and Auto-motor Press Joint Company and the Printing Company had not signed any contract with the Color Printing House on the commissioned printing of "AUTO KATACOG", therefore how could the Color Printing House be regarded as "undertaking the printing side". As a result, the Color Printing House has no right or obligation to "examine the procedures for print commissioning and print undertaking of "AUTO KATACOG", according to the national law and regulations"; b) The signature of the printing heading on the end page of "AUTO KATACOG" is not the Color Printing House; c) The tape-recording and not-taking evidence collected by the Auto-motor Press Group and Auto-motor Press Joint Company through their lawyers could not serve as proof for the verdict of this tort case, because the evidence given by the ones that have great concern with this tort case is not forceful. 2) The two companies, Color Printing House and Printing Company, are respectively independent persons, therefore respectively responsible for civil liability. At the same time, the Color Printing House is one stockholder of the Printing Company, the main staff of the Printing Company are the original personnel of the Color Printing House; the office building and workshops of the Printing Company are the original Color Printing House. Thereby, both sides are in cooperation and coordination of production. The cooperation between the two is to compensate the cost of the other and doesn't make profits from the other. It is not the real intention of the law that the cooperation relationship in production necessarily beads to the legal joint liability. The accusation of "playing an important role in this pirating occurrence (refers to unauthorized printing of "AUTO KATACOG"), thus charge of co-responsibility for the tort" made by the Auto-motor Press Group and Auto-motor Press Joint Company against the Color Printing House is groundless.

The Recognized Facts In the Initial Trial by Beijing's First Intermediate People's Court

Beijing's First Intermediate People's Court found out: the Auto-motor Press Group is a limited company registered in Germany, engaged in publishing business, especially the business of purchasing, managing and coordinating the business done outside Germany by the Auto-motor Press Joint Company, which is its subsidiary company registered in Stuttgart. The business includes export of magazines and publication to foreign countries and transfer of the publication copyright. "AUTO KATACOG 1994" by the Auto-motor Press Joint Company. The Auto-motor Press Joint Company is the subsidiary company under the Auto-motor Press Group. "AUTO KATACOG" is a professional automobile magazine published by the Auto-motor Press Joint Company on a yearly basis containing words and pictures, and belongs to the category of books. The words and pictures in "AUTO KATACOG" are contributed by the staff of the Auto-motor Press Joint Company and those employees have already given up their copyright of these articles and photos. It is the Auto-motor Press Joint Company that has the copyright of these articles and pictures in "AUTO KATACOG", and has the authorization for reprint , translation or redesign. Germany is a member country of "Berne Convention" and "World Copyright Convention". In 1992, China joined these two conventions.

The book "AUTO KATACOG" was published in Jan. 1996, of which most words and pictures were copied from "AUTO KATACOG 1994" and "AUTO KATACOG 1995". The editors of "AUTO KATACOG" plagiarized "AUTO KATACOG 1994" and "AUTO KATACOG 1995", making copies, modifications and translation of some of the words and pictures. "AUTO KATACOG" books were issued and sold at the book markets in Beijing. In "AUTO KATACOG", editors acclaimed the automobiles put out in 1994 by various big auto companies as "the latest model of the year 95 to 96, or more than 500 proto-types". They deliberately marked 1996 on the cover, and made several changes from 1993/1994 to 1995/1996 in translation, acclaiming new types in 1996. The cover design of "AUTO KATACOG" is also the copy of that of "AUTO KATACOG 1994". The undersigned editor of "AUTO KATACOG" is "Changjiang" the undersigned "publisher" and "issuer" is "a certain publishing house", the undersigned "printer" is "a certain printing company", the undersigned "distributor" is "Xinhua Bookstore", "number of copies" is "6,000 books", the "issue number" is "ISBN7-5078-1605=3/Z.280", and the "prince" is "39.8 yuan". The issue number and bar code of the book belong to a certain publishing house.

In the proceedings, the Publishing House submitted to the court the publication of "China's Reformers" whose issue number of "ISBN7-5078-1305=3/Z.280" is the same as that of "AUTO KATACOG". The published date born on the book was Aug. 1996, by which the Publishing House meant to prove that the publication of "AUTO KATACOG" was an illegal publication. After an investigation made to the Book Department of the Information Publishing Administration, the book corresponding to the issue number of "ISBN7-5078-1305=3/Z.280" is "China's Reformers". According to the "cataloguing in publication (CIP) data", the publishing date of "China's Reformer" was Jan. 1997.

In Nov. 1995, a staff Xu of the Printing Company used the "printing contract shadow notice of the Printing Company, stamped the production seal on it, and in the printing name of "AUTO ADERTISEMENT", he commissioned the production section of the Color Printing House to print the inner pages of "AUTO ADVERTISEMENT".

The Publishing House is a book-editing and publishing organization established in 1985, while the Printing Company is a joint venture established in 1985. Its business scope covers the printing, production and processing of books, periodicals, pictures or other kinds of publications. And the business of the Color Printing House includes the Printing, composing and plate-making of books, periodicals, pictures etc.

The Judgment and Related Grounds of the Initial trial

Beijing's First Intermediate People's Court adjudicated that: without the authorization of the Auto-motor Press Group and Auto-motor Press Joint Company, the editors of "AUTO KATACOG" plagiarized, copied, modified and translated "AUTO KATACOG 1994" and "AUTO KATACOG 1995", therefore the book "AUTO KATACOG" is a pirated production. So, the accusation of infringement on copyright made adjudicated that: the Auto-motor Press Group's and Auto-motor Press Joint Company's suit against the Publishing House, the Printing Company, the Color Printing House is effective, and the Publishing House, the Printing Company and the Color Printing House should bear the corresponding liability under the law. On accordance with the provisions listed in Item (5) and (8) of Article 45 and Item(1) of Article 46 in the "Law on Copyright of the People's Republic of China", Beijing's First Intermediate People's Court made the judgment of the initial trial:

A) The Publishing House should immediately stop infringing upon the copyright of the Auto-motor Press Group and Auto-motor Press Joint Company;

B) Within 30 days after the adjudication is effective, the Publishing House should make a public apology to the Auto-motor Press Group and Auto-motor Press Joint Company in the newspapers of "Law Observer Daily" to eliminate any bad effects; while the Color Printing House and the Printing Company, within 30 days after the adjudication is effective, should make a written apology to the Auto-motor Press Group and Auto-motor Press Joint Company (the contents of the apology will be checked and approved by the court);

C) The Publishing House should pay compensation of RMB 66,864 yuan; the Color Printing House should pay compensation of RMB 14,328 yuan;

the Printing Company should pay compensation of RMB 14,328 yuan to the Auto-motor Press Group and Auto-motor Press Joint Company;

D) Other relief sought by the Auto-motor Press Group and Auto-motor Press Joint Company are rejected.

After the adjudication, the Auto-motor Press Group and Auto-motor Press Joint Company agreed to the judgment of the initial trial, and the Publishing House, the Color Printing House and the Printing Company didn't appeal within the effective period, the judgment of the initial trial became legally effective. The Publishing House the Color Printing House and the Printing Company fulfilled the prescribed obligations within the effective period, making a written apology to the Auto-motor Press Group and Auto-motor Press Joint Company and paid the compensation.

Comment:

The adjudication of the this case concerned the following legal issues:

A) qualification of the main body of the plaintiff's copyright

In accordance with the provisions of the relative international conventions and the laws of the PRC, the copyright of German citizens is protected by law in China. The Auto-motor Press Group and Auto-motor Press Joint Company have the copyright of "AUTO KATACOG 1994" and "AUTO KATACOG 1995" and their words and pictures, enjoy the priority of the format and lay-out of "AUTO KATACOG". Therefore, the qualification of the main body of the Auto-motor Press Group and Auto-motor Press Joint Company's copyright is legal, which should be affirmed.

B) Should all the defendants undertake the legal liability for the infringement on the copyright of the "AUTO KATACOG"?

1) The issue number and bar code are the main business information approved by relative departments only for publishing houses. The publishing houses should take great care in managing and using them. The Publishing House claimed it was others that pirated its name to publish "AUTO KATACOG", yet didn't supply adequate effective evidence. Therefore, the Publishing House should still be judged as the publisher of "AUTO KATACOG 1995", so it should bear the legal liability of the tort.

2) In accordance with the provisions of the copyright, all units and persons should fulfill the obligation not to pirate others' copyright. In trades which have close relations with the publications, businessmen should not only observe the laws and regulations, and trade management provisions, but also be on guard not to violate others' intellectual property rights. The Printing Company and Color Printing House, are in fact the printer of the "AUTO KATACOG". The Printing Company and Color Printing House are not strict with their inner management, as a result, the pirated book "AUTO KATACOG" could be printed, bringing about the occurrence of the tort. The Printing Company and Color Printing House infringe on the copyrights with intent and therefore should be responsible for the infringement.

C) The determination of the compensation of the case

The Auto-motor Press Group and Auto-motor Press Joint Company didn't submit evidence of losses due to the infringement on their copyright, didn't submit their authorization, and of losses due to the amount of profits gained by the Publishing House, the Printing Company and the Color Printing House. Therefore, in this case, Beijing's First Intermediate People's Court determined the compensation that the Publishing House, the Printing Company and the Color Printing House should bear, according to the number of issues of "AUTO KATACOG" and its estimated profits. The Auto-motor Press Group and Auto-motor Press Joint Company couldn't prove that the Publishing House, the Printing Company and the Color Printing House commonly deliberately carried out the infringement, therefore the Publishing House, the Printing Company and the Color Printing House should not bear the joint liabilities among them. They should only bear the compensating liabilities for their corresponding action in the tort.