Highlights: The article analyzes the case that SONY sued for the infringing content of internet Video-On-Demand service integrated in TV set and the provisions of port principles in China Copyright Law.
It is reported that SONY (TYO: 6758, NYSE: SNE), along with a VOD website, was sued by a Chinese cartoon company (the “copyright owner”), and Beijing Dongcheng District People’s Court has accepted the suit.
As news reports, the copyright owner claimed that SONY integrated the internet unicast service software in certain type of its TV set. Furthermore, with SONY’s TV set instruction, the consumer could watch the content of infringing program after registering the serial number of TV online and an account with a website in sequence.
Hardware producer could not provide relevant content directly, even like SONY who has its own pictures for the administration approval in China. In such case, The cartoon programs were provided by SONY‘s partner instead of SONY itself, whose website is contained in the software pre-installed in SONY’s TV set and accessible to consumers by remote control.
The suit is under hearing and we believe there will be a fair decision. The article will focus on the introduction of laws and regulations concerned in the case.
According to China Copyright Law, it is about the right of communication of information on networks instead of broadcasting right in SONY’s case, for the cartoon programs on TV addressable is transmitted through the internet , which is more in accordance with the definition of the right of communication of information on networks.
Just like most countries, the exemption is also legally regulated in the Regulations on the Protection of the Right of Communication through Information Network issued by the Sate Council with the reference to Digital Millennium Copyright of U.S., which says that the internet information service provider(the “ISP”) could exempt from tortious liabilities if it delete the Infringing content in appointed timeis
Most website charged in infringement case concerning internet work of movie and TV in China are basing on user-generate-content. Given the anonymity of the internet, the copyright owner tend to sue the websites which store the infringing content instead of the users who upload it when infringement.
Normally, the website tends to be judged exempt once it could be proved that it is a simple ISP and not edit or recommend the content uploaded by the user.
The court will hold that the infringement is established and the website would bear indirect infringement liability or contributory infringement liability even no recommendation is made by the website once the work is a hot movie, thus it could be deduced that the website is in fault for such online subscription for it’s obviously noticeable to the website for the long play time of the movie, while the true owner shall have no reason upload its top movie.
For those hardware makers like SONY, they may be exempt from the direct infringement liability for the cartoon programs provided by the third video website while the indirect infringement liability is not escapable. And the determination of whether SONY will assume infringement liability mainly bases on the following factors which by our experience include:
1. Whether the infringing videos are provided by the TV set producer depending on the user’ s direct feeling?
2. Whether the hardware producer involved in uploading, indexing and classifying the infringing videos?
3. Whether the hardware producer has examined and verified the copyright authorization documentation of the corporate video website.
Finally, SONY’ s case is not an isolated case for the complicated situation of Chinese intellectual property. In fact, our professionals also once handled the infringement against trademark by the software integrated in hardware in addition to the copyright disputes.
Therefore, more attention on IP risks is suggested to the foreign-invested hardware producer of TV set, PC, Mobile Phone, Tablet including investigation on IP authorization of the partner intended to sign with and engagement of local professional lawyer when necessary.
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Copyright reserved by Mr. You Yunting
Editor-in-Chief of Bridge IP Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. All news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only. You may contact us shall you have any opinions or suggestions.
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