On 30th December, the Annual Conference of Sohu Weibo Client (weibo is just kind of microbloggng service like twitter in China), 2011 was held in Beijing, and Sohu (NASDAQ: SOHU) first issued the Weibo Copyright Protection Convention among the four main microblogging platforms in China, which verifies that the author may enjoy the copyright over its tweets, and accordingly Sohu will provide protecton on it, respect its authorized use and offer aids in the legal protection. However, for the tweets tend to be brief, therefore its protection by Copyright Law has been long argued. And here is the analysis from Bridge IP Law Commentary on it.
I. What tweets could be protected by Copyright Law?
Any words, sounds, pictures or videos shall first meet the demands of works in China Copyright Law for the legal protection, and in other words, the content of the microblog shall first be original as provided on China Copyright Law.
As to the normal blog, it may contain hundreds or thousands words, and it must be elaborately drafted and modified before the publicity, by which the originality of it is necessarily granted and naturally it could be the works on law. As to the microblog, it may be opposite, for it tends to be brief, speedy, focusing on sharing and quick spreading and has limitation on words in the sentence (for Sina Weibo, the tweets shall be less than 140 words), which leads to the casual content in it, such as the tweets like “what a good day” or “So splendid the night view of Shanghai is”. And obviously these content could not establish the “works” for no originality in it, and surely will not be covered by the legal protection of Copyright Law.
But it does not mean that no tweets will be protected by the Copyright Law. Some microblogs are elaborated by the author, including the versicle, the valuable short comment, the creative jokes, or the serialized novel, all these literary works with strong readability and could be the “works” protected by the copyright law. For the other situation of the content with picture, music or video instead of words, the determination of the works is relying on the judgment of the originality of the works.
In a word, it all depends on the originality of the content which is essential to a “works” in law whether the tweet could be protected by Copyright Law.
II. What actions could be the infringement in Weibo (Microblog)
The user of the microblog shall first agree the User Agreement before tweeting any content. Let’s take the regulation on IPR in the User Agreement of Tencent (SEHK:700) as the example, it provides that:
“Any information publishing on Tencent Weibo shall imply Tencent is entitled to broadcast such information. The information publicized on Tencent Weibo shall violate or infringe no third party’s IPR, and the user shall in no way to upload, publish, modify, broadcast or copy any copyrighted material, trademark or personal proprietary information unless with prior agreement. And on the proper notice from the copyright owner or the legal representative, Tencent will remove the infringing content.”
The key regulation in the above agreement shall be “Tencent is entitled to broadcast such information”, which means Tencent, the operator, can get the right of broadcast immediately after the tweets. However, those who broadcasting the information are usually other users rather than the operator, namely the “retweet”, and that is rarely specified in the agreement. Then here comes the question that could the retweet bring the infringement to others’ copyright? Therefore, we would like to analyze the question in situations as follows:
1. The tweets could not be the works in law
In this situation, the user retweeting the content will not infringe other’s right for the reason as above.
2. The tweet constitutes the works in law and be retweeted by other users
The “retweet” is the key function on the platform of weibo, which is an essential and popular way to share the microblog. Yet we find that little agreement has covered it among the main weibos in China.
The retweet is not the infringement against others’ right though no specific regulation on it. First, the identity of the author is remained when the information is retweeted, and meanwhile the retweeting user gains no profit from it and the retweeted user suffers no losses. Second, to retweet the weibo is the accepted rule in microblog, once there’s no statement for retweet prohibition, we think the transition is implied by the author. It’s also verified in the Convention issued by Sohu that ant retweet within Sohu Weibo shall not be the infringement, while the transition of the microblogs to other weibo like Sina or Tencent may risk the claiming of infringement.
3. The tweet could constitute the works in law and the user publishes the copied one rather than retweeting it.
Such action is obviously the infringement, for it violates the right of copy of the author. And once detecting such misconduct, the original writer may notice the operator to delete the infringing content with the reference to the user agreement.
What’s more, despite the publish and browse of the weibo are free of charge, due to the feature of the media of the weibo, many commercial institutions are framing the false popularity among the users by plagiarizing others’ hot tweets and purchasing false follower to draw the public attention, and then insert their ads or links in the plagiarized weibos which constructs the microblog to be the ads platform. That may constitute the profit from infringement as provided in law, and under this situation the original writer may demand the liability taking of the infringer.
The heated weibo has been part of someone’s life and has changed their life inadvertent, however the corresponding laws and regulations seem to be lagging behind. The problem of the copyright is one among all the newly emerged question of weibo, and the analysis of Bridge IP Law Commentary here is just for your reference.
Other posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
10. Matters for Attention in the Patent Preliminary Injunction Application in China(II)
Author: Mr. Luo Yanjie
Attorney-at-law of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law 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. And 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 and are our original works. You may contact us shall you have any opinions or suggestions.
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