(By Luo Yanjie) According to the Copyright Law, the copyright holder has more than ten exclusive rights. The copyright holder is often unclear about the differences between the exclusive rights and may have a very vague understanding of the fair use system, a system which can cut against the copyright. Although the case introduced in this essay is fundamentally not a rights protection case, the judgement clarifies the methods used for publication and expands the scope of the fair use copyright exception. The following is a summary and analysis of the case:
The noted bar examination trainer, Mr. Zhang Haixia, once claimed all the female students studying in France have loose morals, and these comments were recorded along with the lecture and posted on Weibo. Mr. Yu Jianrong, a renowned Chinese scholar, also transmitted the recording and commented on it. Zhang believed that Yu infringed his publication right and right to network dissemination of information for that lesson. Therefore, Zhang filed a lawsuit in court.
Yu made the following defence: because the video involved in the case is a lesson for bar examination training delivered for payment Yu challenged the ownership of Zhang. The oral class lecture involved in the case can be taken as a public performance, therefore, it was published once it was created. Moreover, the video was uploaded by another netizen, and Yu just transmitted it. Based on these arguments, Yu demanded that the court refuse all of the plaintiff’s claims.
The Beijing No.2 Intermediate People’s Court held that the video involved in the case is an oral work under China’s Copyright Law. Considering that there was an agreement between Zhang and the bar examination training center on ownership of the copyright, the copyright of the oral work belonged to Zhang. And the uploading of the video to the internet and its broadcast did not gain Zhang’s approval. Zhang’s teaching is the publication of his oral work. Because publication is a one-time right, the right of publication is exhausted after the work is published to the public. So, Yu’s unlicensed use of the published work does not infringe the right of publication. For these reasons, the judge refused Zhang’s demand for apology and influence removal. Yu’s transmission of the work was for the purpose of commenting on Zhang’s views, which is the expression of Yu’s opinion. The Copyright Law allows fair use by third-parties of protected work. The work involved in the case is Zhang’s teaching, created for the lesson in the center only. Normally, students would not visit Yu’s blog for details on this content but rather for his opinions only. For these reasons, Yu’s transmission was a fair use and not an infringement of Zhang’s right to network dissemination of information of the work. Dissatisfied with the judgement, Zhang appealed to the higher court.
The Beijing Higher People’s Court decided that the right of publication is the right to decide whether to open the work to the public. “Open to the public” refers to publishing the work to the non-specific public. If the work can be acquired, it is considered as published. The specificity of the public does not depend on the size of the public involved but on the intention of the author and the methods that the work is provided. If the number of people within the scope of the publication scope of the work is indefinite. The first instance court made its analysis and comments based on the facts of the case as well as the foundation of the conditions for fair use provided in Article 21 of the Implementing Rules of the Copyright Law. That analysis and comment meets the principles and the purpose of that the fair use system was designed for. So, in the end, the Beijing Higher People’s Court refused the appeal and sustained the original decision.
Two main points deserved discussion in this case: 1) the court’s definition of publication and the publishing; 2) the enlarged explanation of the fair use doctrine.
- Which behaviour constitutes infringement of the right of publication?
Under the Copyright Law, the right of publication is a personal right of the holder that cannot be transferred to others. Moreover, it is essential to notice that the right of publication can only be exercised one time. After its use, others cannot infringe it.
Applied to this case, the plaintiff believed that he only delivered his teaching (the “oral work”) within a very limited scope and did not publish it to the public, so it could not be taken as the publication. Although the scope of the classroom is very narrow, anyone could get access to it for paying a fee. Therefore, the author did not specify the object of the work’s communication, but rather they were delivered to a non-specific public. Once directed towards a non-specific public, the work is deemed published. Considering that publication is a one time right, once a work is published, the defendant cannot infringe the right of publication.
- Is it proper for the court to enlarge the scope of the fair use doctrine through its interpretation?
The fair use system is the legal system used to combat the exclusivity of the holder’s copyright which could influence the communication of the work. In the system of China’s Copyright Law, fair use is decided through the presence of certain legal behaviour, namely those that are regulated in Article 22 of the Copyright Law and Article 6 of the Regulation on the Protection of the Information Communication by Network Rights. Although the transmission or comment on works is fair to some extent, it is still not within the scope of the lawful regulation. Both the first instance court and the second instance court are suspected to have enlarged the law. Therefore, the relevant departments must promulgate new regulations to redefine the fair use system and to replace such inflexible rules with such principled regulations matching with the current society. With such a change disputes could be use the judge’s consideration of whether it is the fair use under the law, which is very necessary in practice.
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.