(By Luo Yanjie) Abstract: The fair use system in China adopts a legislative model of “exhaustive listing”, and many judicial breakthroughs in recent cases appear to be more in conformity with principles of fairness and impartiality. Copyright Infringement against the right of reproduction shall be prohibited. However, an interesting question is whether the infringing party assumes liability for damages in cases where the copyright owner doesn’t actually suffer any losses.
Google Books has triggered global protest and litigation from publishers worldwide. The following is an introduction to a case that developed in China.
Introduction to the Case:
Wang Xin, known by her pen name Miaomiao, authorized the Shanghai Joint Publishing Corporation to publish her book “盐酸情人 Yansuan Qingren” (the “disputed book”). Google China (http: //www. Google.cn) collected portions of the book for use with its Google Books system, and provided said contents to the general public without prior permission from the author and the publisher. Beijing Guxiang Enterpises (“defendant one”) is the operator of Google China; Google (“defendant two”) actually scanned and digitalized the disputed book for inclusion in its database. Wang Xin, in her capacity as author and creator of the book, brought the two defendants to court and demanded compensation for infringement.
The court, upon hearing the case, held: considering the fact that the defendant one provided just part of the disputed book, with discontinuous chapters, sections and non-total paragraphs, defendant one’s use of the disputed book is considered to be a fragmented usage. Taking into account that fragmented use of copyrighted material is not considered substantial enough to be considered use, there was insufficient infringement to find damage to the substantial marketable value of the disputed book, and even more difficult to find that such use could affect sales of the disputed book. Therefore, the court held that defendant one would not be required to assume infringement liability. However, considering the fact that the reproduction of the disputed book could cause actual losses to the copyright owner, the court decided that defendant two infringed the plaintiff’s right of reproduction, and therefore would be required to assume liability for compensating the plaintiff for her losses.
Although the amount in dispute in this case was not very large, and the category of law utilized within copyright law was not overly complex, the opinions and attitudes shown by the court are worth thinking about.
I. The court broadened the scope of “fair use” when applied to this case
Pursuant to the provisions of our copyright laws, under some circumstances, copyrighted works may be used without permission of the copyright owner, and without payment of remuneration to the copyright owner; we all know this system as “fair use”. In our legislative system, fair use is stipulated in Article 22 of the Copyright Law. Furthermore, our legislation adopts a legislative mode of exhaustive listing. If in strict accordance with the Copyright Law, fair use is restricted to the twelve conditions outlined in Article 22. In some cases, a “general standard” of fair use may not always apply.
In this case, however, the court seemingly did away with this restriction. With regard to fragmented scanning and providing of copyrighted work, which is not stipulated in current laws and regulations, according to the legislative intention and actual conditions of fair use, the court exempted defendant one from any liability. In my opinion, the trial court is placing itself in front of the legislation, and its application of the law should be in conformity with principles of fairness and impartiality.
II. Reproduction as an independent act can be considered a type of copyright infringement.
In accordance with the Copyright Law, the right of reproduction is enjoyed by copyright owner as its exclusive right. Reproduction without permission is, certainly, considered to be infringement.
In practice, however, the reason why copyright infringement cases concerning the right of reproduction are seldom filed with the courts is that the purpose of the most infringing party is to disseminate or broadcast or otherwise make use of the infringing works. From this perspective, in cases where there is only infringement by reproduction, damages are almost never suffered by the copyright holder. In this case, the court also held that reproduction separately is likely to cause potential risks for the copyright owner’s economic interest. However, those potential risks can be understood as “having not yet happened”, thus meaning that the copyright owner suffered no losses at that particular time. Therefore, in this case, the courts determined and ruled that defendant two cease its infringement and also assumed liability for such. Such a decision seems to be slightly unreasonable.