No Infringement of SONY TV’s Unauthorized Cartoon Playing

By Luo Yanjie

In our past post “How Sony Can Avoid Copyright Risk”, we gave our legal opinion in the copyright infringement charged against SONY. And in that case, SONY integrated the function of networking in a type of its TV products, by which the consumer could watch the cartoon produced by an animation company after registering its TV and the application for an account on an appointed websites under the instruction of SONY. The animation company sued SONY and the website in Beijing after detaining the infringement.

And in recent, Beijing Haidian People’s Court judged the case, saying that SONY shall take no liability under the charge for SONY is just a TV manufacturer with no access to decide and control the website to be visited by the consumer after linking the TV to the internet, also it’s impossible to edit and arrange the content of the website visited through the TV and thereby being incapable to examine any infringement on the website. This judgment confirms our earlier analysis. Today we would like to share our post again.

How Sony Can Avoid Copyright Risk?

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 the local court in Beijing has accepted the suit.

As reported, the copyright owner claimed that SONY integrated the internet unicast service software in a type of its TV products. Furthermore, with SONY’s instruction, the consumer could watch the infringing program after registering the serial number of the TV on the Internet and an account.

Generally, due to the demand of administrative approval in China, the hardware producer could not provide relevant content directly, even like SONY who has its own film studios. Therefore in the case, the cartoon programs were provided by SONY‘s partner instead of itself, and the website of the partner is pre-installed in SONY TV. Furthermore, with the operation of the remote control, the consumer could visit the infringing website.

The suit is under hearing and we believe there will be a fair decision. This post will focus on the discussion over the laws and regulations involved in the case.

According to China Copyright Law, SONY’s case is mainly about the right to the information communication by networks instead of the right of broadcast, for the cartoon programs is transmitting by the Internet though the consumer watch it from their TV sets instead of the computers.

Just like most countries, China also has made its own regulation on liability exemption of ISP 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 ISP could exempt from infringement liabilities if it deletes the infringing content after the notice of the right owner in the legally demanded time.

Most website charged of infringement by Internet are with UGC contents. And due to the anonymous uploading, most right owners tend to choose file the lawsuit against the website broadcasting the infringing content rather than the users uploading them.

Normally, the website tends to be judged liability free once it could prove that it is just an ISP and has made no edition or recommendation to 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.

Lawyer Contacts

You Yunting

86-21-52134918

youyunting@debund.com, yytbest@gmail.com

For further information, please contact the lawyer as listed above or through the methods in our CONTACTS.

Bridge IP Law Commentary’s posts, including the comments and opinions contained herein, shall not be construed as the legal advice on any issues related. The contents are for general information purposes only. Anyone willing to quote or refer the posts to any other publications or for any other purposes, no matter there’s benefits gained or not, shall first get the written consent from Bridge IP Law Commentary and used under the discretion of us. As to the application of the reprint permission for any of our posts, please email us to the above addresses. The publication of this post or transmission of it through mail, internet or other methods does not constitute an attorney-client relationship. The views set forth here are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works.

Short Link: