Recently, Judge Gao Fei, from Dongcheng District People’s Court in Beijing, has published an article on the China Press and Publishing Journal, discussing the relevant problems of the electronic evidences of network copyright in China. The article analyzes the four main problems in the evidence preservation of network copyright infringement disputes due to the evidence being intangible and easy to be modified, and it also gives the solution. Bridge IP Law Commentary today will introduce you our interpretation on the article.
(1) The problem of notarization equipment.
When computers or mobile phones used for the notarization are not owned by the notary office, or such notarization is not made in the office with the computers or phones unexamined for any possible special gadget or such examination is not recorded in the notarization certificate, the opposite party tends to question the authenticity of the notarization.
(2) The problem of evidence collection.
The certification may make sketchy description over the evidence collection, with no detailed record of the key information like the login path or website as well as the operation process. The common problems include the attached notarial CD in the certificate only intercepts part of the infringing video, or only a static screenshot print is attached but without a dynamic video of a whole operation process, which can’t indicate whether the work can be finished playing, and as to the work in episodes, the video may only contain clips of some episodes. The incompletion of the video may leave the defect on the effectiveness of the notarization certificate. Bridge IP Commentary believes the main reason behind the problem is that the evidence collection on videos cost more time than others, while the right owner is less likely to spend too much time on the evidence collection for the court tends to judge little compensation on such infringement.
(3) The defect of the notarization certificate and CD.
The slip of a pen, missing page, omission or vagueness of seal are not rare on the certificate from the notary office. Furthermore, some notarial CDs could not play due to the quality or damage resulting from unreasonable preservation.
(4) The problem of irregular notarization invoice.
As it is acknowledged that the infringer shall take the evidence costs, therefore, many right owners are likely to claim the burden of the notarization fee by the infringer, and in such situation the notarization invoice is the evidence for such expenses. However, the date of the invoice may be different from the notarization day and it also may not match the case number in the office, and this may arouse the doubt on the relevance between the notarial fee and notarial certificate.
Judge Gao Fei proposes three advices to the four problems described above. First, to promote the qualification and profession of the notary officers; Second, to complete the record of the notarization process of electronic evidences preservation in a notarial certification, and to record a necessary dynamic video; finally, to strength the judicial review combined with other evidences.
This text is summarized and translated by Ms. Chen Danhong.
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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