Ten innovation intellectual property cases in Beijing during 2015

Case I: Unfair Competition Dispute in Sogou v. Qihoo on Blocking Browser Installation and Settings

Plaintiff: Beijing Sogou Information Services Co., Ltd. (referred to as Sogou Information)
Plaintiff: Beijing Sogou Technology Development Co., Ltd. (referred to as Sogou Technology)

Defendant: Beijing Qihoo Technology Co., Ltd. (referred to Qihoo Technology)
Defendant: Qihoo 360 Software (Beijing) Co., Ltd. (referred to as Qihoo Software)

Details

Sogou Technology and Sogou Information are the copyright owner of Sogou Browser and Sogou Input Method. Qihoo Technology and Qihoo Software are the developers, right holders and operators of “360 Security Guard” software. By using their software, Qihoo Technology and Qihoo Information blocked user from installing and using Sogou browser, blocked user from initiatively making Sogou Browser as the default Browser as well as make up and distribute the ungrounded stories including “Sogou Input Method is bundled with Sogou Browser” and “Sogou Browser cannot be uninstalled without 360 Security Guard”. Sogou Technology and Sogou Information believed that these acts constituted unfair competition.

The court held that: During the installation and default setting process of Sogou Browser, 360 Security Guard used pop-ups and direct interventions with words like “Trojan Firewall Reminder: Hazard”, “Dangerous”, “Trojan Quick Cleaning” and other descriptions, which were false descriptions of Sogou Browser. Without any notifications, 360 Security Guard blocked user from setting Sogou Browser as the default, disrespectful to the right to know of consumers and damaging normal settings of Sogou Browser. 360 Security Guard did not treat browser products with the same criterion, as it did not notify upon the installation and setting-up of 360 Browser and IE. 360 Security Guard’s official microblog published ungrounded stories including “bundling”, and further distributed them. In conclusion, two defendants were acting against commercial moralities and unfairly competing. As for the compensation, the court decided that the figure should be 5.1 million yuan for financial loss and reasonable expenses, based on a court’s reckoning on actual loss by passive user loss, along with surveillance data by Sogou Technology and Sogou Information.

Innovation Evaluation

This is a typical case in which security software intervene, judge and block browser software. When a developer of a security software also operates non-security products or services, it is both the judge and the competitor. In this case, following rule shall be observed: “Minimal Privilege” principle. Intervention other software must be done with the premise that it is “realising its utilities”, and the method and extent of intervention shall match the issues being monitored. Situation shall be reported honestly. Users’ right to know and choose shall be respected, and blocking competitor’s action or making choice for the user are not allowed. The second principle is “Equally Treated”. Same censorship and surveillance shall be implemented for both their own software and competitor’s with no discrimination. The case made explorations in the loss and compensation calculation in internet unfair competition. The statutory compensation shall be calculated based upon the unfair competition acts and infringement facts. The judge can calculate the actual loss by referring to industry conventions, third-party statistics, infringed party’s statistics and other evidence, alongside with economics, statistics and other methods. Obstacles and losses caused by infringements in question upon the plaintiff in legal economic loss, marketplace reputation, market expansion and other aspects shall also be taken into consideration as well. Discretion on compensation shall be proportional to the the scale, scope and seriousness of the harm to the market. If necessary, defendant’s market position and influence shall also be considered, in case of further repeated infringements.


Case II: “Unfair competition involving

HiWifi blocking Pre-Roll Ads”

Plaintiff: Beijing iQiyi Technology Co., Ltd. (referred to as iQiyi company)

Defendant: Beijing Jike Geek Technology Co., Ltd. (referred to as Jike Geek)

Details

iQiyi company's iQiyi website provides online video service, and make commercial gain by pre-roll ads. Jike Geek company is the producer and seller of “HiWifi” router, and provide their users with “ad-blocker” developed and uploaded by the company on its cloud platform. Users can block iQiyi’s pre-roll ads by downloading and installing of the “ad-blocker”. iQiyi claimed that this conduct constitutes unfair competition.

The court held that: iQiyi company's main business is video playing service, while Jike Geek company's main business is the production and sales of hardware. There is no competition between the two parties seemingly. However, Jike Geek’s using “ad-blocker” and “HiWifi” together would attract users to block pre-roll ads, thus increasing the commercial interest of Jike Geek while damaging iQiyi’s. It further constitutes a zero sum in commercial interest between two companies, therefore a competitive relationship is formed between the two. iQiyi’s main business is online video service and commercial gain is made through pre-roll ads. The business model is legitimate and the interests it generates shall be protected. Operators are allowed to get a legitimate competitive advantage through technological innovation and business innovation, but never directly intervene in business activities of competitors, unless public interest is involved. Jike Geek’s using of “ad-blocker” to directly intervene in iQiyi company's business operation for its own commercial interest did constitute unfair competition.

Innovation Evaluation

This case is the first unfair competition case involving ad-blockers made by hardware vendors. The verdict’s innovation significance is found in the identification and legitimacy of competition. “Competitive relationship” shall be identified by corporate behaviours rather than identities; it shall be identified by specific acts to determine competitiveness but not on its main business or industry it is in. In the internet age competition often transcends national boundaries and industries while conventional industry boundaries are also blurring. Nowadays it is much easier for businesses to operate cross-industry, so hybrid business are more often to be seen. Hardware vendors can operate in software and network service, while software vendors and network service provider can be engaged in the hardware business activities. Operators in different businesses or industries are not unlikely to find themselves in competitive relationship due to business expansions. Technological innovation should be encouraged, but the use of technology cannot break legal restrictions. Operator of a business shall not directly intervene in the business practices of others, unless public interest is involved. The use of “ad-blocker” plug-in appears to meet the immediate interests of consumers. However, in the long run it is going to render the “freemium + ads” business model used by video website unsustainable, thereby force them to turn to “pay per play” model and ultimately hurt consumers’ interest.


Case III: “Design Patent Infringement

Involving Building Blocks”

Plaintiff: Beijing Qisehua Education Technology Development Co., Ltd. (referred to as Qisehua)

Defendant: Beijing Lezhilin Education Technology Co., Ltd. (referred to as Lezhilin)

Details

In April 2013, Qisehua filed an application of a design patent to the State Intellectual Property Office, and got the patent grand statement on December 18th, 2013. The patent's name was "Building Blocks", and patent number was ZL201330147666.6, with containing 49 components. On April 2014, Qisehua bought the building blocks produced by Lezhilin through notarial purchase. By comparison, the above-mentioned building blocks all contained the same 49 components as that of the design patent at issue. Also, through the notarial purchase, Qisehua proved that Lezhilin implemented the activity of offering to sell the above-mentioned themed building blocks at its website.

The court held that: although the design patent at issue contained 49 components, they were not independent but need rely on each other as a whole to exert the building blocks' use value. Therefore, the design patent at issue did not refer to a product in set but a product comprising 49 components. As to this design patent right, it should be based on the requirement of Article 59 paragraph 2 of the Patent Law, in order to determine protection scope according to the product's design patent in the picture or photo. Lezhilin produced, sold and offered to sell three alleged infringing products that all contained the same 49 components as that of the design patent at issue, having fallen into the protection scope of the design patent at issue, infringing the right of Qisehua’s patent at issue, and shall undertake civil liabilities in accordance with law. On these grounds, the court ruled that: Lezhilin must stop producing, selling and offering selling the products infringing the right of the design patent at issue, and compensate Qisehua 150,000 yuan for economic losses and reasonable litigation expenses.

Innovation Evaluation

This is the first right infringement case involving design patent of component products. In this case, the court clearly defined distinguishing standard of products in set and products of components, and also defined the identification methods of infringing such design patent according to whether the relationship of assembling products was unique: first, as to the design patent of component products whose relationship of assembling is unique, when the design of alleged infringing products are identical or similar to that of the component products in state of assembly, it should be judged that the design of alleged infringing products falls into protection scope of patent rights. Second, as to the design patent of component products whose each component's relationship of assembling does not exist or is not unique, when the design of alleged infringing products are identical or similar to that of all single component, it should be judged that the design of alleged infringing products falls into protection scope of patent rights. When the design of alleged infringing products lacks that of some single component, or not identical or similar, it should be judged that the design of alleged infringing products does not fall into protection scope of patent rights.


Case IV: The Rejection of “Mo Yan” Trademark

Plaintiff: Wang Donghai

Defendant: State Administration for Industry and Commerce Trademark Review and Adjudication Board (TRAB)

Details

Wang Donghai applied for the registration of No. 11,733,424 "Mo Yan" trademark (referred to as the trademark for short) to the State Administration for Industry and Trademark Office (referred to as the Trademark Office), designated for use in pipes, 34th class in the international classification of commodities. Trademark Office and the TRAB have both made the decision to reject the application for trademark registration. Wang Donghai appealed against the decision and launched a administrative lawsuit.

The court held that: The trademark is same as the pseudonym of Nobel Prize for Literature writer "Mo Yan". After Mo Yan won the prize, the word "Mo Yan" has direct link with the Nobel Prize for Literature, which is widely recognised as the world's most important, authoritative and concerned prize in literature circle. Mo Yan’s winning the Nobel Prize for literature implies that his artistic achievements have been recognised by the international literature circle, and this, without question, also has an impact in the field of culture. The registration of “Mo Yan” trademark without the consent or permission of himself is bound to cast negative effect on the public interest and order. It is not only against the principle of honesty and trust to register celebrities’ real name, pseudonym or stage name and gain interest, but also damaging to the rights of celebrities, as well as the public order and goodwill. If registration of this kind is allowed, a large number of similar cases would certainly follow and cause chaos in the trademark registration order of China. It would also encourage the practice of reaping other’s interest, which is to be condemned by socialism morals. Therefore, this application shall not be supported, as the application does not comply with the provisions of the Trademark Law Article 10, paragraph (8).

Innovation Evaluation

According to Trademark Law Article 10, paragraph (8), trademark logo detrimental to socialist morality or customs, or having other ill effects shall not be used as trademarks. In trademark examination practice, ill effects generally refer to that the sign or its components could have a negative impact on China's political, economic, cultural, religious, ethnic domains and other public interests and order. If the registration of the mark damage only specific civil rights, such as the right of name of others, it would not damage public interest or order and thus is not against the provision of paragraph (8). In registration practice, many trademark brokers have tried to gained improper benefits by registering a massive number of celebrities’ name in all categories. If such applications are approved, a lot of name trademark would come into existence and it would greatly damage the trademark order and international image of China. However, there is still insufficient basis to reject such applications in authorisation process. The verdict on this case carries out a proper development on the trademark review criterion involving the name right based on domestic practice, and sets an example in trademark reviews involving the name of well-known people: The application of trademark registration shall be rejected according to “ill effect” description in Trademark Law Article 10, paragraph (8), when the name of a celebrity, who bears tremendous significance and awareness in country’s political, economic or culture domains, is applied for registration.


Case V: The dispute of “UNIQLO” Trademark Infringement

Plaintiff: Guangzhou Compass Exhibition Service Co., Ltd. (referred to as Compass)
Plaintiff: Guangzhou Zhongwei Enterprise Management Consulting Service Co., Ltd. (referred to as Zhongwei)

Defendant: Fast Retailing (China) Trading Co., Ltd. (referred to as Fast Retailing)
Defendant: Beijing Yixi New World Department Store Co., Ltd. (referred to as New World Department Store)

Details

Compass and Zhongwei were registered on March 14, 2012.

The trademark (referred to as the trademark involved), approved for registration on June 21, 2013, was designated for use in clothing & shoes of Class 25. In 2013, Compass and Zhongwei found that the UNIQLO store in the New World Department Store was using the same “” logo as the trademark involved in many places on its advanced ultra light down coat on sale, which was supposed enough to confuse the public and infringe their exclusive right to use the registered trademark.

The court held that: given that the time of acceptance and occurrence of infringement behaviour of this case are both before the enforcement of Amendment of Trademark Law, this case should apply the Trademark Law before amendment. Compass and Zhongwei have no evidence to prove that they have virtually used the trademark involved, and they hold up to 2600 registered trademarks, which is obviously beyond the demand of normal production and operation. Moreover, they have transferred these registered trademarks to others for many times and tried to sell the trademark involved at a high price to make profit, so they do not have the intention to actually use the trademark involved as a business logo. Fast Retailing has made its clothing products with “UNIQLO”、“” and “优衣库” a relatively high level of brand awareness and market influence through a long period of effective operation without intentionally attach the goodwill of the trademark involved. Fast Retailing adopts its own brand to operate its professional clothing retailers and uses the “” logo to do promotion chronically, massively and predominately in their boutiques, which has formed a significant meaning of recognising the origin of products. What’s more, the products involved are all stamped with the “” logo to enable customers to know that the they originated from Fast Retailing instead of others or has any relation with the trademark involved if a general attention is paid when they shop. Overall, the logo accused of infringement is not supposed to be the same as, or similar to the trademark involved in the sense of Trademark Law. The products in case does not constitute infringement.

Innovation Evaluation

This case is a typical trademark infringement dispute. Although the court applied the old Trademark Law in the trial, it followed the spirit of the new Trademark Law. From appearance of the logo, actual usage of trademark involved, attachment intention of defendants and perception of the public, the court finally judged that the logo accused of infringement is not supposed to be the same as, or similar to the trademark involved in the sense of Trademark Law, and the products in case does not constitute infringement. This case reflects the phenomenon of hoarding trademarks maliciously and lack of credibility to a certain degree. The integration of law effect and social effect are considered through the trail of this case, which is good for parties to regulate their behaviour as well as guides for the standardised operation of the whole business market.


Case VI: The dispute of prior use right of “Qihang” Trademark

Plaintiff: Beijing Zhongchuang East Education Technology Co., Ltd. (referred to as Zhongchuang)

Defendant: Beijing Haidian Qihang Test Training School (referred to as Qihang Test School)
Defendant: Beijing Qihang Century Technology Development Co., Ltd. (referred to as Qihang)

Details

Guiyang Qihang School has registered “启航学校Qihang School” trademark (referred to as the trademark involved) in 2001, which was designated for use in school (education), teaching, training of class 41. This trademark has been approved since April 7, 2003. From February 1998, Guiyang Qihang School started to advertise on local Guiyang City Newspaper with “Qihang English Enrolment”. Zhongchuang was approved to exclusively use the trademark involved in graduate entrance exam training area. Qihang Test School was started in January 1998 and Qihang was founded in August 2003. The former mainly engaged in graduate entrance exam training and the latter principally provided internet information service. From September 1998 until now, Qihang Test School has complied various categories of graduate entrance exam books, most of which were titled as “Qihang Graduate Entrance Exam”. Qihang Test School started to publish all kinds of graduate entrance exam training advertisement on China Youth Daily, and listed all sorts of Qihang graduate entrance exam training materials. Qihang Test School has marked logos as “Qihang Education”, “Qihang Graduate Entrance Exam” in its office, promotional materials, and employees’ business cards. There are also words like “Qihang”, “Qihang Graduate Entrance Exam”, and “Qihang Education” being used in many places of its website. Zhongchuang believed that the behaviours of Qihang Test School and Qihang mentioned above has infringed their exclusive right of the trademark involved.

The court held that: Qihang Test School and Qihang had used “Qihang Graduate Entrance Exam” to publish training books before the application date of the trademark involved, and had advertised on media like China Youth Daily, which gave the “Qihang Graduate Entrance Exam” trademark a recognition function in graduate entrance exam service and had “certain impact”. The current evidence fails to prove the register of the trademark involved used the trademark involved before Qihang Test School and that the existence of fault of Qihang Test School using the trademark involved. Words like “Graduate Entrance Exam” are descriptions of service provided, and only “Qihang” reflects the using of trademark. Thus Qihang Test School and Qihang’s usage behaviours of trademarks including words like “Qihang” conform to the Trademark Law Article 59, Clause 3, which does not form infringement.

Innovation Evaluation

This is a typical case of prior use of counterargument right of trademark applying the new Trademark Law Article 59, Clause 3. There are four applicable conditions of this clause: 1. There exist prior use of trademark before the application date of others who register the trademark. The purpose of setting the time of prior use as “application date” instead of “registration date” is to guide the public to register their trademarks not just use them; 2. In principle, the prior use behaviour should be early than the trademark register’s usage of this trademark. Whether the prior use is in good faith should be taken as an important consideration when determine this condition. Not as long as the trademark register use the trademark earlier than the prior user, the prior use defence is certainly acquitted. If although trademark register has prior use behaviour, prior user has no idea about that and there is no other malicious situation, then the prior use defence cannot be denied to stick because trademark register has prior use behaviour; 3. The prior used trademark should have certain impact. 4. The accused infringement behaviour is others’ usage behaviour in former scope. The “former scope” should be understood from the involved “trademark”, “goods or service”, “use behaviour” and “use subject”. The after used “trademark” and “goods or service” should be “the same” or “basically the same” as that of the prior use. But the size of the after use behaviour is not restricted by that of prior use.


Case VII: “Disputes Over Filing a Malicious Intellectual Property Suit of Damage Liability”

Plaintiff: Beijing Far East Cement Products Co., Ltd. (referred to as Far East Cement )

Defendant: Beijing Sifangrugang Cement Products Co., Ltd. (referred to as Sifangrugang)

Details

Sifangrugang has an invention patent named "borehole wall module and the method of using this module to construct borehole wall". At first, the patent grand statement contained product claims 1-10 and method claims 11-19. Then, in the process of announcement of invalidation provided by person not involved in the case, Sifangrugang voluntarily gave up method claims 11-19 of patent at issue, and changed original product claims 1-10 to claims 1-8. After that, Sifangrugang filed a suit on the ground that Far East Cement infringed the patent right at issue, but then withdrew its claim for some reasons. Far East Cement held that, though Sifangrugang had deleted all method claims and changed the product claims, it still claimed infringement using original method and product claims other than the changed ones, which belonged to a malicious intellectual property suit. Thus, Far East Cement filed a suit to require the defendant to compensate for the losses such as attorney fee and so on.

The court held that: in order to identify some certain specific litigation as malicious intellectual property one, it should at least satisfy the following requirements: first, one party makes a certain request by filing an intellectual property suit, or makes a certain request to threaten. Second, the party making a request has subjective malice. Third, it has a practical damage result. Fourth, the activity of filing a suit by the party making a request has a causal relationship with the damage result. In the case, first, Sifangrugang filed a patent infringement suit, and then gave up all the claims by withdrawing the case, which can be regarded that it had finished the activity of filing a specific suit to threaten. Second, after voluntarily giving up and changing the claims of patent at issue, Sifangrugang still filed a patent infringement suit based on the original claims, which lacked basis in fact and claims basis and had an obvious subjective malice. Third, Far East Cement paid the attorney fee for responding to the lawsuit, leading to a damage result of economic loss. Fourth, considering the complexity of patent cases, it was reasonable that Far East Cement engaged a lawyer to respond the lawsuit for safeguarding its own legitimate rights. The attorney fee paid by Far East Cement had a causal relationship with the malicious patent infringement suit filed by Sifangrugang. Sifangrugang compensated 50,000 ￥ for Far East Cement’s economic loss.

Innovation Evaluation

This case involves the identification criteria of a malicious intellectual property litigation.

The dispute over filing a malicious intellectual property suit of damage compensation liability, is as a formal cause of action coming from the amendment decision made by Supreme People’s court for the rules of civil cases' causes of action in 2001. In 2008, when Patent Law was amended for the third time, some department had ever tried to write a single article for the constitutive requirements of a malicious suit, but because it was hard to clearly define from the words, it remained to be judged by judicial practice based on individual case to accumulate experience continuously. This case verdict made clear the constitutional requirements of filing a malicious patent infringement suit, and defined action borders of right holders exercising suit rights, especially in the background of case registration system，helping regularize right holders’ lawsuit action and directing them to safeguard rights by law. This case has certain reference significance to hear a malicious intellectual property case of damage liability.


Case VIII: Xiaomi and Qihoo Jurisdiction Dispute

Plaintiff: Beijing Qihoo Technology Co., Ltd. (referred to as Qihoo)

Defendant: Xiaomi Technology Co., Ltd. (referred to as Xiaomi)

Details

Qihoo claimed that Mi Phones by Xiaomi blocked their 360 Security Guard from installation and forced its uninstallation with other unfair competition conducts, and sued Xiaomi in court. Qihoo sued Xiaomi in the court in the jurisdiction Qihoo is in, as per Article 25 of Judicial Interpretation for Civil Procedure Law which provides that the location of infringement includes the resident of the infringed. However, Xiaomi believed that this case was not under the jurisdiction of the court in plaintiff’s location and appeal for a jurisdiction objection.

The court held that: The information network infringement provided by Article 25 of Judicial Interpretation for Civil Procedure Law refers to acts that the infringing party publishes information on the internet and damages other’s lawful rights. For instance, the infringing party publishes information on the internet that damages the distribution right of the infringed. Not all infringements or unfair competition related to internet are information network infringement. This case is an unfair competition case in which the decision is upon whether the alleged computer software or website includes settings or functions that obstacle fair competition of competitors, not an information network infringement. Thus, this case is not under the provision of Article 25 of Judicial Interpretation for Civil Procedure Law. To involved parties, the confirmation of jurisdiction shall be definite and expectable. The jurisdiction is confirmed by “two conveniences principle” and “defendant’s place principle”. For unfair competition cases, the jurisdiction where the infringing party’s server have relevant settings, the jurisdiction where the infringing party use computers to make relevant settings or the jurisdiction where the defendant is in are all more suitable than the plaintiff’s jurisdiction for the court to inspect unfair competition conducts and implement court decisions. If plaintiff’s location’s court is allowed to take the case for the reason that computer software can be accessed from internet, it would add difficulties to the inspections of unfair competition conducts and the implement of court decision, against basic jurisdictions principles including the “defendant’s place principle”. The court has transferred the case to the court where the defendant is in.

Innovation Evaluation

This case is about the understanding and application of Article 25 of Judicial Interpretation for Civil Procedure Law. Since information network infringement is coined in that article, with clarification that the location of infringement includes the resident of the infringed, a lot cases have come with jurisdictions claims according to the article after the judicial interpretation was implemented. There were also a high number of jurisdiction disputes. This case has taken the objective of Article 25 into consideration and clarified the applicability of information network infringement. With the definitiveness and expectability of jurisdiction, “two conveniences principle“ and “defendant’s place” principle taken into account and for a proper solution of the case, the court found that this case was not under the provision of Article 25 of Judicial Interpretation for Civil Procedure Law.


Case IX: "J-10" fighter model copyright dispute

Plaintiff: Beijing AVIC Zhicheng Co., Ltd (referred to as AVIC Zhicheng)

Defendant: Shenzhen Feippengda Manufacturing Co., Ltd. (referred to as Feipengda)

Details

“J-10 Aircraft (single-seat)" (referred to as “J-10”) is a new type of aircraft. In November 2007, AVIC Zhicheng was authorised to manufacture “J-10” model and advocate the intellectual property rights on their own behalf. With authorisation obtained, AVIC Zhicheng started to manufacture scaled-down “J-10” models, based on “J-10” original blueprint and current design. Feipengda started to manufacture and sell “J-10” models since June, 2011. AVIC Zhicheng believed that the alleged infringing product caused infringements on AVIC Zhicheng’s right to reproduce and distribute of the graphic work, artwork or model works of “J-10” design blueprint and model.

The court held that: Firstly, AVIC Zhicheng claimed that “J-10’s” design constituted an artwork, but failed to demonstrate what components were pure artistic expression which were independent to the aircraft performance, besides the components determined by aircraft’s utility. Therefore, the court couldn’t rule “J-10’s” design as an artwork. Secondly, albeit the model is scaled down from the aircraft, but it is still ingenious and a model work according to Copyright Law and relevant regulations. Thus, Feipengda infringed the copyright law of AVIC Zhicheng.

Innovation Evaluation

This case is a typical one involving the question of whether a military aircraft’s designs and its model constitute an artwork and model work in the sense of China’s Copyright Law. First, the court did not rule out the eligibility of “J-10’s” design to be protected by Copyright Law as an artwork. However, the court held that it can be regarded as an artwork and protected if it did bear ingenious artistic expression besides designs determined by its utility. Although AVIC Zhicheng claimed that the design was an artwork, they did not manage to come up with evidence or reasonable explanation. Therefore, the design of “J-10” couldn’t be ruled as an artwork. The second point is about whether “J-10” model constitutes an art work. The verdict started from Copyright Law’s definition on model work, and found that a model has better ingenuity as it has higher resemblance to the original article or can better satisfy the practical need. The “J-10” model is a scaled down from the “J-10” aircraft, but that’s where its ingenuity is according to the implement regulations of Copyright Law. It is a model work and shall be protected.


Case X:Jia Zhigang’s Spring and Autumn Period StoriesCopyright Disputes and Infringement

Plaintiff: Jia Zhigang

Defendant: China Science and Culture Video Publishing House Ltd. (referred to as Science and Culture Video Publishing House)
Defendant: Foshan People's Broadcasting Station (referred to as Foshan Radio)
Defendant: Xie Zhengrong

Details

Jia Zhigang is the author of Jia Zhigang’s Spring and Autumn Period Stories series novel. Science and Culture Video Publishing House made the novel into an audio book named World Stories: Spring and Autumn Stories and played it commercially in programme World Stories on FM 94.6 and FM 92.4 by the name of the author Xie Zhengrong. The content of the programme is about 74% same as the words in novel Jia Zhigang’s Spring and Autumn Period Stories. The programme World Stories: Spring and Autumn Period Stories altered the expression to a form more suitable to colloquial language based on original text. During the programme, Jia Zhigang’s name was not mentioned until disclosing that he was the author in the ending episode. Jia Zhigang Claimed that his copyright was infringed.

The court held that: When a radio station broadcasts a published work by others, the authorship and name of the work shall be specified, and no adaption shall be made, except ones for the work to be listened to rather than be read. Foshan Radio did not specify Jia Zhigang’s name during their use of the book and have made excessive adoption to the work. In two years World Stories: Spring and Autumn Period Stories being broadcast, Jia Zhigang’s authorship was not mentioned until the ending episode. Therefore, the act by Foshan Radio does not comply with paragraph 2 of Article 43 in Copyright Law of China, and is an infringement to the copyright of Jia Zhigang. Xin Zhengrong, as an employee of Foshan Radio, made World Stories: Spring and Autumn Period Stories as a job duty for Foshan Radio. As per mutual consent, the copyright generated by performing job duty is owned by Foshan Radio, so the infringement liability shall also be taken by Foshan Radio. It is also an infringement for Science and Culture Video Publishing House to publish the programme in discs.

Innovation Evaluation

This case provided a thorough explanation on law application of radio station’s statutory authorisation. Factors that are to be considered upon judging whether radio or TV station has infringed copyrights when broadcasting or playing other’s published work are also clarified, which are: (1): the statutory authorisation allows adaptions but these adaptions shall be limited to ones made for broadcasting requirements and suitability, and a new work cannot be derived by addition of new content; (2): a signature is the token of statutory authorisation and the constituent elements of it. The verdict of this case further clarified the legal provisions in Copyright Law about statutory authorisation. It also helps strike a balance between protecting the rights of copyright owner and lawful distribution of culture and art works.