When handling a dispute between trademark and copyright, Chinese courts always apply a rather high standard to determine whether works protected under trademark law will also receive protection under the copyright law. Our website previously discussed this question in the posts Analysis on Proof Requirements in Figurative Trademark Infringing Others’ Copyright Cases by China Court and Why the Calligraphic Character’s Copyright Failed to Defeat Trademark Right.Today, we’d like to introduce a case regarding conflicts between a work of fine art and a trademark, due to the identical combination of Chinese characters and English letters.
(By Albert Chen) Hainan Netcom is an Internet Service Provider (“ISP”), but it also provides the content on the Internet. Even after the company failed todemonstrate that the IP address is used by a third party, and it fulfilled its obligation to check the content of the webpage, the company should still be liable for any corresponding infringement.
Beijing Ciwen Filming Co., Ltd. (“Company C”) is the copyright holder of film Qi Jian (also known as “Seven Sword”) in mainland China. However, Company C discovered that Hainan Netcom hadbeen providing a link on its homepage (www.hai169.com) for its visitors to stream Qi Jian, without the authorization of Company C.As a result,in September of 2005, Company C filed a lawsuit against Hainan Netcom because it believed that Hainan Netcom had infringed upon its copyright.
(By Albert Chen) Hainan Netcom is an Internet Service Provider (“ISP”), but it also provides the content on the Internet. For the URL available on its web pages, the company should be obligated to take an even higher care with regards to its content. Even after the company fails to demonstrate that the IP address is used by a third party, and it has fulfilled its obligation to check the content of the webpage, the company should still be liable for any corresponding infringement.
(By Albert Chen) When the character in a film or television work satisfies the originality element, it could constitute as an independent work under the Copyright Law. But in that situation, the right holder of the film and television work could not necessarily claim the copyright over the character in it, and any infringement against the character shall be fought back by its designer or the licensee of the designer.
In 2009, China Shanghai Character License Administrative Corporation (“SCLA” hereinafter) gained the exclusive license from Tsuburaya Company for Ultraman Diga’s reproduction rights, distribution rights, rental and merchandising rights, and as well as the right to relicense the above rights within the territory of mainland China. After that, SCLA found that Hubei Xinyijia Supermarket Co., Ltd. ( “Xinyijia” hereinafter) has been selling out the Ultraman Diga toys, and thereafter SCLA filed their lawsuit in the court.
(By You Yunting) You could find the vendors selling the pirated films, TV dramas, music or software in almost each single street in the cities of China. And according to the current regulation that the amount of the sales totaled 500 discs could be prosecuted for the criminal law violation, any vendors who has been selling the pirated discs for at least one month could constitute the crime of copyright infringement, and to be sent in to jail. Despite what the vendor has done may damage the IPR of the copyright holder, it is fair to combat them under the laws and regulations. But it seems that the existing judicial interpretation has a too wide governing scope, and could have damaged the purpose of the Criminal law. And in the practices, the vendors who have been prosecuted for their piracy selling could be less than 1% of all. Thus it has made the vendors do not care the punishment regulated in the criminal law, and that on the other hand has broken the principle “any violation against the criminal law shall be prosecuted and punished”, and thereafter it may promote the law enforcement upon the selection or the law enforcement in the political campaign or the rule of man. And the at the same time, it could harm the IPR protection.
Today, our website will introduce the most recent crime adopted by courts in some regions of China to combat online game cheating programs: the crime of damaging computer information systems.
III. The crime of damaging computer information systems
Although there problems with all of the crimes previously discussed for combating cheating programs, with the strengthening of legislation, the online game industry finally found a suitable crime in 2011. According to Article 286 of the Criminal Law:
“Those who violate the law by deleting, modifying, adding, or interfering with the function of computer information systems so that information systems are unable to run normally, which leads to severe consequences, may be sentenced to imprisonment of no more than five years of detention; when the consequences are especially severe, the violator may be sentenced to imprisonment of more than five years. Those who violate the law by deleting, modifying, or adding data or applicable procedures to the storage, processing, or transmission programs in computer information systems, which leads to severe consequences, may be punished as per the preceding paragraph.”
Today, we will introduce the second crime adopted in China to combat cheating programs in online games: criminal copyright infringement.
II. The state of criminal copyright infringement
After years of combating cheating programs using the crime of illegal operation, the judicial organs in some regions tried to use criminal copyright infringement from Article 217 of the Criminal Law to combat cheating programs. The subjective aspect of criminal copyright infringement requires the unlicensed copying and distribution of the copyrighted work of another for profit.
(By You Yunting) Since Shanda imported the massively popular online game, MIR, from South Korea in 2001, the online game industry has gradually become one of the most profitable businesses in China, and has made a fortune for tycoons such as Chen Tianqiao and Ding Lei. On the other hand, all kinds of illicit activities have arisen with the development of the online game business, among which cheating programs to assist players is the most troublesome for the game companies.
According to information acquired by the writer while working in a game company, cheating programs are software that run with the game software, thus giving them their name as game cheating programs. Cheating programs have several harms. First, they incur Gresham’s Law (bad money chases out good money), which makes rules-obeying players easily defeated and thereby damages the fairness of the game. Second they put more burden on the server and force the operator to purchase more servers and the bandwidth, which undoubtedly increases costs and decreases the stability of the server. Third, they enable players to fulfill game objective more quickly, which abnormally speeds up the progress of the game and could force the game company invest more human resources into developing new game content or elements. Although it is possible that some cheating programs are used to make up for the defects in the game, most have harmed the gaming experience, added costs of the company’s development and operation, and could jeopardize stable running of the game.
(By Albert Chen) In January 2013, China’s State Council revised several administrative regulations regarding computers and intellectual property rights, specifically the Computer Software Protection Regulations, the Regulation on Protection of the Right to Network Dissemination of Information, the Implementing Regulations of the Copyright Law, and the Regulation on the Protection of New Varieties of Plants. These revisions mainly focus on the punishments for violation of regulations, and they came into effect on March 1, 2013.
By You Yunting
In recent, CNTV, the subsidiary of China national television station (the “CCTV”), which in charge of its online business, quarreled with SMG’s BesTV (SHEX:600637) on the Olympics broadcasting. By the statement of CNTV, it owns the exclusive online broadcasting right of 2012 London Olympics in China, yet BesTV, with no license form CNTV, provided 1) the streaming of Olympic games, 2) program time-shifted playback through server storage and 3) VOD to local cooperated IPTVs, and that damages CNTV’s legal rights. So far we have heard no reply from BesTV on the accusation.
By You Yunting
A question raised up for me on Weibo stating: should all the singing performances by the participants in talent shows be licensed by the copyright holder? And who shall take the infringement liability once it is accused by the right holder? Behind the question, the most heated news related to the topic is that Universal sent a lawyer’s letter to Li Daimo, the participant of The Voice of China, accusing his unlicensed performance of “You Exist in My Song”, the works of Universal’s singer. Also in the letter, the company demands the ceasing of the performance of the song, by both the participant and The Voice. The seemingly short question actually has many legal issues in it, and the following is my answer to them.