Tag Archives: originality

Why China Court Decision Requires Software Interface Primary Aesthetics under Protection?

Posted on by

(By Luo Yanjie) Pursuant to the Copyright Law, the works shall be original with primary aesthetics. From this point, most software interface can’t receive protection from the Copyright law, because most software interfaces are designated in a simple arrangement for the purpose of easy-to-use and thus are likely to be considered as lack of “distinctiveness”. The judgment in the following case set forth the theory.

Introduction to the Case:

Appellant (defendant at first instance): Shenzhen Tenda Technology Co., Ltd (the “Tenda”)

READ MORE

Why Guangzhou Intermediate People’s Court Decided the Contractual Terms not Protect by the Copyright Law?

Posted on by

(By Luo Yanjie) Abstract: The Implementing Regulations of the Copyright law stipulates “works” under the protection of the Copyright Law shall be under originality. “Originality” can be divided into two parts: independent creation and the minimum intellectual creation.

An enterprise filed a suit to the courts, alleging the defendant copied its contractual terms. One would wonder whether the terms of a contract shall be protected by the Copyright Law. The Guangzhou Intermediate People’s Court provided an answer that the terms in a contract may not be protected by the Copyright Law owing to the expression limitation of a contract. Here are the introduction to this case and our opinions for the following.

READ MORE

Why NEXON’s BNB Failed to Accuse Tencent’s “QQ堂” of Copyright Infringement?

Posted on by
paop

(By Luo Yanjie) Abstract:  The Copyright Law protects “expression” rather than “thought”. For the purposes of the Copyright Law, “works” refer to original intellectual creations in the literary, artistic and scientific domain, insofar as they are capable of being reproduced in a specific tangible form. Works without originality are not protected by these laws.

In recent years, there has been a serious plagiarism problem in the field of online games. Considering that online games act as computer software, laws protect its “code” other than game mode and method. The case in today’s post will elucidate this principle.

READ MORE

Why Chinese Court Says No to Copyright Protection for Instruction of Pharmaceutical Products?

Posted on by
图片1

(By You Yunting) Recently, the Foshan Higher People’s Court in Guangdong province heard a case and determined that medical instruction manuals provided with pharmaceutical and other medical products do not receive copyright protection.

In my opinion, this viewpoint is worth discussing. Although it is probably reasonable to presume that the defendant, as a drug distributor, has less of an obligation to be vigilant about copyright infringement than that of the drug manufacturer, the overall scenario coupled with the court’s decision to find non-infringement seems correct. However, in regard to the question whether the copyright law should protect medical product instructions, we find ourselves in a rather difficult position; it is not that easy to come to a simple conclusion. In today’s post, we will introduce and share the aforementioned case, as follows:

READ MORE

Why the Calligraphic Character’s Copyright Failed to Defeat Trademark Right?

Posted on by
TM截图未命名

Abstract: To determine whether a prior copyright could defend itself against a later trademark right, whether the foundation of copyright exists should be the first enquiry. That is to say, it is worthy of discussion whether an author receives copyright for a single calligraphic character in calligraphic works.

Pursuant to China’s laws and regulations, prior ownership of copyright in a work is a defense against a later trademark right. In determining whether a prior copyright can defend itself against a later trademark right, however, the first matter to be decided is whether the foundation of copyright exists. That is, whether the author obtains copyright for a single calligraphic character in calligraphic works. In today’s post, we will introduce and discuss a typical case as follows:

READ MORE

Why Couldn’t the Trademark “Bond” Be Applied to Contraceptives?

Posted on by

(By Albert Chen) The Beijing High People’s Court (the “Beijing High Court”) established the “merchandising right” in a 2011 judgment on an administrative dispute between the Trademark Adjudication and Review Board (the “Board”) and DANJAQ, LLC (the “DANJAQ”). That was the first judicial definition of the right, and the first time it was included as a protected “prior right.”

In today’s post, we would like to describe the facts in the case, and introduce to our readers the opinions of Beijing High Court and our comments on the matter.

READ MORE

Why China Court Protects Violation Against GPL License Agreement?

Posted on by

(By You Yunting) We could find no regulation in China’s Copyright Law and Regulation on the Protection of Computer Software with regard to the open source software. In a dispute judged by Haidian People’s Court in the 1st instance and Beijing No.1 Intermediate People’s Court in the 2nd instance, though both courts determined the validity of the open source agreement, they supported those violating the GNU GPL as failed in disclosing newly added source code could claim the copyright over the new work. To our understanding, the case, on the  one hand, had showed the pragmatism of China courts, and on the other hand, it also demonstrated that the open source software organization is necessarily to be seen in the right protection on the OSS software.

READ MORE

Why Ultraman Movie‘s Copyright Holder Confronts Obstacle in Claiming His Right over Ultraman Doll?

Posted on by

Abstract

(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.

Case Summary

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.

READ MORE

Why Couldn’t the Trademark “Bond” Be Applied to Contraceptives?

Posted on by

(By Albert Chen) The Beijing High People’s Court (the “Beijing High Court”) established the “merchandising right” in a 2011 judgment on an administrative dispute between the Trademark Adjudication and Review Board (the “Board”) and DANJAQ, LLC (the “DANJAQ”). That was the first judicial definition of the right, and the first time it was included as a protected “first right.” The decision can be considered a clarification of the “merchandising right” by the judicial organs as well as broadening the scope of first rights.

READ MORE

Is It Copyright Infringement to Perform “Gangnam Style” at a Corporate Annual Gala in China?

Posted on by
506313c1c4cc11b2309016

(By You Yunting) PSY, the most popular South Korean Artist, has achieved more than 1 billion clicks, or views, on Youtube for his music video “Gangnam Style,” and has earned a global reputation. To perform Psy’s signature “horse-riding” dance has become an integral part of domestic corporate annual galas in China. In fact, the partners of our law firm have been encouraged by colleagues to perform the dance for everyone’s amusement. The problem was that none of us could actually perform the “horse-riding” dance properly. When facing such horrible demands from coworkers, a question raised by one of our associates interested me: would a performance of “Gangnam Style” infringe others’ lawful rights?

READ MORE

Which Part of Medical Instruction Could be Protected by China Copyright Law?

By Luo Yanjie

In recent, the Supreme People’s Court of China asked for public opinions on “judicial protection on the medical instruction’s copyright and the definition of its legal boundary”. The lawyers of our website are confronted with the same problems in practices: shall the instruction be protected by the copyright law? So, in today’s post, we would like to share our opinions on the copyright protection of the insert with the reference to our past cases and experiences.

I. Could the instruction be the works on law?

READ MORE