(By Luo Yanjie) According to the Copyright Law, the copyright holder has more than ten exclusive rights. Because of the many kinds of works and complexity of society’s use of the work, 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 judgment 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:
Case summary:
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. Zhang’s views inflamed opinions on the Internet. Mr. Yu Jianrong, a renowned Chinese scholar, also transmitted the recording and commented on it. But, 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, demanding that Yu: 1. Apologize and remove the influence through the People’s Court Daily and the Legal Daily; 2. Compensate for RMB 10,000 in economic losses and RMB 100,000 in mental losses; 3. Pay the costs incurred in the lawsuit: RMB 20,000 in attorney fees and RMB 3,000 in notarization fees and RMB 222 in coping expenses.
Yu made the following defense: the video involved in the case is a lesson for bar examination training delivered for payment. Therefore, it is a work for hire. The existing evidence is inadequate to demonstrate Zhang’s ownership of the copyright, so he cannot be a plaintiff in this case. The oral class lecture involved in the case can be taken as a public performance. Therefore, it was published once it was created, and the defendant could not have infringed any rights of the plaintiff. Moreover, the video involved in the case was uploaded by another netizen, and Yu just transmitted it and thus has no fault. 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. Because neither Zhang nor the training center licensed others to upload the video for distribution on the internet, which Yu has did not disprove, the uploading of the video to the internet and its broadcast did not gain Zhang’s approval.
The work involved in the case is Zhang’s teaching for bar examination training. There were hundreds of trainees who were able to receive the teaching after registering with the training center and the paying the admission fee. Therefore, the object of Zhang’s training was public and not particular. 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.
In the case, the oral work involved was published, and Yu’s transmission of the work was for the purpose of commenting on Zhang’s views, which is the expression of Yu’s opinion. Yet, the expression of opinions may not damage others’ lawful rights. At the same time, the law permits others to use the work and stops the rights holder from preventing use, if it is a fair use. 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. People visit of Yu’s blog for his opinions only, rather than the content of the teaching itself, which is not related to the opinions of the parties involved. For these reasons, Yu’s transmission did not infringe Zhang’s interests and was instead a fair use and not an infringement of Zhang’s right to network dissemination of information of the work. Dissatisfied with the judgment, Zhang appealed to the higher court.
After the hearing, 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, and whether the work has been published does on depend on the actual acquisition of the work but the possibility of acquiring it. Therefore, if the work can be acquired, the work is considered as having been published. As to the specificity of the public, it also does not depend on the size of the public involved but is decided by 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, and they also they have no close personal relation with each other, such people can be taken as the non-specific public.
Furthermore, the “fair use system” is an important part of the Copyright Law. Article 22 of the Copyright Law provides twelve situations for fair use, and Article 21 of the Implementing Rules of the Copyright Law specifies the provides the requirements for these twelve situations. With the development of the computer and other communication technology, however, the internet and other new forms of communication have rendered the above twelve situations unable to solve the problems that occur in practice. Therefore, 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.
Lawyer comments:
There are two main points deserving the discussion in this case: 1) the court’s discussion and definition of publication and the publishing; 2) the enlarged explanation of the fair use doctrine.
1. What conduct constitutes infringement of the right of publication?
Under the Copyright Law, the right of publication is “the right to decide whether the work is opened to the public,” and that right is a personal right of the holder that cannot be transferred to others and can only be owned by the author. Moreover, it is essential to notice that the right of publication can only be exercised one time; once the author discloses the work to the public, the exercise of the right of publication is finished. At that point, others cannot infringe it, and the author cannot exercise it again.
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. By the author’s opinion, the plaintiff’s claims could not be established. 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. Also, once directed at a non-specific public, the work is deemed published. As the second instance court stated, this does not depend on the size of the public involved. Considering that publication is a one time right, once a work is published, the defendant cannot infringe the right of publication.
2. 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 exclusive right of the copyright holder, and its main purpose is to prevent a monopoly of the work by the rights holder, 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 conduct, 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. This limits the methods of fair use and does not contain an “other” provision as seen in other articles of the law. Although the transmission or comment on works is fair to some extent, it is still not within the scope of the lawful regulation. In the case, both the first instance court and the second instance court both concluded that transmission on the Weibo falls into the scope of fair use, and this interpretation is suspected to have enlarged the law.
Although the court is suspected of exceeding its power, the current law’s inflexible and to narrow definition of the fair use doctrine can no longer meet the objective demands of society. Therefore, the relevant departments must promulgate new regulations to redefine the fair use system and to replace such inflexible rules with such principled regulations. 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.
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