Whether using the Name of Another’s Work Constitutes Copyright Infringement or Unfair Competition

Abstract: The Copyright Law and the Anti Unfair Competition Law supplement each other, but they also compete with each other.

(By Luo Yanjie Unfair competition refers to an operator’s misconduct that violates principles of fairness, justice, and good faith; it is also considered any behavior that violates widely adopted commercial ethics. As for copyright, as a kind of exclusive right, it mainly focuses on granting the right holder a monopolistic right in conformance with the law, and thereby grants the right holder monopoly rights as well as a competitive advantage through the exploitation of his/her own intellectual works.

Case Summary:

Mr. Zhu Deyong, is the author of the noted comic “Things about Working in the Office” (the “Comics”), while Mr. Liu Yiwei is the anchor of the program “Issues about Work in the Office” (the “Program”) In 2010, Mr. Zhu filed a lawsuit in court against the Program, claiming it had infringed the copyright of his work and unfair competition had resulted. The main basis for his claim was that the name of the Program is similar to his comics, and also in the Program one can hear the slogans and symbolic statements well known in his comics.

According to the judgement in the first instance: what Zhu claimed was only the book’s name and part of the content of his work, which could not be considered a core part of his work. Moreover, the Program never adopted the content of the Comics. The first instance court determined that the appearance of the above same or similar content was not adequate to determine infringement against the copyright of the comics.he first instance court denied Zhu’s claims.

In terms of unfair competition, Zhu had the right to commercialize the work, which also included licensing to others, or through cooperation with others adapted the work into films and TV programs, and therefore gain monetary interest from that. For this reason, it could be decided that Zhu is competing with Weizhong Company and CBN with his Comics works.

Due to both the Comics and the Program being related to occupational issues, and their readers and audiences being quite similar , and in further considering the similarity of their titles, any adoption of the poster or short film of the Program would make the public link it to the comics, and ultimately Zhu’s interests would be damaged. Hence, the first instance court decided the adoption in the program to be misleading propaganda and constitutes unfair competition. Yet, Zhu was dissatisfied with the judgement, and appealed to a higher court.

The second instance court found, that the adopted parts were only the title or part of its content, and only took a very small proportion in the work, which did not constitute the core or substantial part of the work. For this reason, it denied copyright infringement.

As for the judgement regarding unfair competition, the Program’s name was apparently determined to be quite similar to the title of the comic work. However, this content as judged were actually not misleading or false propaganda concerning the quality, producer, content or origin of the work. According to the public’s daily experience, they would not associate them together. Actually, the Program didn’t adopt any content within the Comics, and therefore it could not demonstrate the above propaganda would be enough to mislead the public.

Furthermore, the “office work” is a social phenomenon, and is also a topic that anyone can discuss. Mr. Zhu could not prohibit others from creating any work on that topic due to his creation of the Comics, or otherwise society’s interests would be damaged. Therefore, Mr. Zhu’s claimed infringement accusation is not illegitimate. Hence, the unfair competition would not be found. The second instance court therefore refused Zhu’s claims.

Lawyer Comments:

The case is a typical one concerning the combination of unfair competition disputes and copyright disputes, and our analysis is as follows:

1. The basic requirements of originality in the Copyright Law

According to the Copyright Law of China, a work shall first appear to be “original.” Although the so-called “originality” is not referring to the quality of the work.. Because the part involved is too short and did not appeared as a Comics part, it could not be protected as independent work.

II. The standard to determine unfair competition

According to Article 2 of the Anti Unfair Competition Law, unfair competition shall refer to any conduct that violates the law and could damage the interests of other operators and disrupt the social economic order. Both the first instance and the second instance courts confirmed competition between Mr. Zhu and the defendant. Considering the commercialization right of Zhu, the courts encompassed the copyright holder in the scope of operators.In this case, the essential question to determine unfair competition was whether the name of “issues about the work in the office” would lead confusion and mistakes among the consumers. For this point, to our understanding the opinions of the second instance should be correct. Because, the consumer would be less likely to associate a TV Program with the same named comics. Both courts confirming that the comics could not be adopted as independent work, which means the originality of this part of the work is low, and could be included in daily speech. And since it could only be deemed as daily speech, how could it lead to confusion among the consumers? Therefore, to judge it from this point, the second instance court’s decision is more logically reasonable.

We posted this article several months ago which might be too long to read it on. Our intern Mr. Le Duc helped us to abstract it again. You may click here for the detailed post, if you prefer to know more on the case.

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You Yunting86-21-52134918 youyunting@debund.com/yytbest@gmail.com

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