(By You Yunting) A post named the Teenagers Cannot Be Bullied was made by a 19-year-old student to complain that Youku.com ripped off his idea, causing a big stir online. The 19-year-old student and his fellows succeeded in taking photos of the earth from flying a hot-air balloon and then published their experience named the Kids Who Chase the Balloon and photos online. Afterwards, staffs from Youku.com contacted him, saying that they would like to address a short video to write down their behaviors. Then they reached an agreement through emails that the 19-year-old student and his fellows would cooperate with Youku.com in making a creative short video from the post the Kids Who Chase the Balloon.
Unexpectedly, staffs from Youku.com later began to find various excuses for denying making the video and finally used lack of funds to terminate the video-making. However, Youku.com published their own commercial video named the Kids Who Chase the Balloon with embedded ads such as Momo and Lexus. The student accused Youku.com of ripping off his ideas and using part of his photos without authorization but staffs of Youku.com denied the accusation. After the Teenagers Cannot Be Bullied triggered a stir online, Youku.com and Momo, two powerful Internet video content providers, issued announcements that they would investigate this matter. Furthermore, Momo also stopped promoting the video making by Youku.com.
I sympathized, as most people do, with the student, but from an intellectual property lawyer’s point of view, it is difficult to protect his rights that Youku.com’s video the Kids Who Chase the Balloon was drawing on the experience of the student, fallen within the “idea” in the Copyright Law which cannot be protected. The photos were, made by the camera automatically, not an original intellectual creation, triggering controversy from the protection of the copyright. From the point of the Contract Law, since they did not enter into a contract, the student cannot require Youku.com to undertake conventional liabilities for violation of the contract. Therefore, today we will discuss how to protect his rights if the student’s version is true.
- Which law shall be used to protect againstplagiarism, the Copyright Law or the Contract Law?
One of the most important principles in the Copyright Law is the idea-expression dichotomy, i.e., the Copyright law only protects the expression or manifestation of the idea, rather than the idea itself. Using other’s reproducible works without authorization constitutes copyright infringement, but copying another’s idea and then making independent works does not constitute copyright infringement. As one may be curious about the question why differentiates the idea from the expression or manifestation of that idea, the reason may be that the idea could not be materialized, or else the protection of ideas may affect the public interests on freelance writing. At present, there is a wide range of puzzled areas for unprotected creations, such as television shows, especially the talented shows, and game playing. Since the Teenagers Cannot Be Bullied triggered a stir online, it is Youku.com that recommend a collection of video that foreign students used balloons to take photos of the earth prominently on its home page. It may try inform the public that creation is unprotected and that the 19-year-old student also learnt from foreigners in taking photos of the earth.
In my opinion, if Youku.com did not come into negotiation with the student and then made a video in accordance with the post the Teenagers Cannot Be Bullied online, it is hard for the student to protect his rights on the ground of plagiarism. However, as Youku.com had come into negotiation with the student but ended up without a formal contract, the student still could quote the contract negligence liability to protect his rights.
Article 42 of the Contract Law stipulates, “the party shall be liable for damages if it is under any of the following circumstances when concluding a contract and causing losses to the other party: 1. Negotiating the contract in bad faith under the pretext of concluding a contract; 2. Deliberately concealing important facts relating to the conclusion of the contract or providing false information; 3. Performed acts against the principle of good faith.” If this case is entering into the court, the student could use the emails between the student and staffs of Youku.com to prove that staffs of Youku.com deliberately negotiated with him to elicit information of his experience and then the court may, in my opinion, decided that Youku.com constituted the contract negligence. If the student could not prove the Youku.com’s negotiation in bad faith, Youku.com may not constitute contract negligence.
- Are the photos making in the balloon protected by the Copyright Law?
In the post the Teenagers Cannot Be Bullied, the student also accused Youku.com of stealing his photos in its video. So the question is whether or not the photos automatically making in the balloon are protected by the Copyright Law, a controversial theoretical matter.
Article 2 of the Implementing Regulations of the Copyright Law regulates that for the purposes of the Copyright Law, “work(s)” shall refer to original intellectual creations in the literary, artistic and scientific domain, insofar as they are capable of being reproduced in a certain tangible form. The photos taking by manual works could be protected by the Copyright law because the angles, the lighting and the perfect timing of photographer’s shooting are original and constituted a type of original intellectual creation. However, under the conditions that the photos made by the camera automatically are not comprised the original intellectual creations, the photos shall not be protected strictly pursuant to the Copyright Law.
However, in practice, for the purpose of protecting the commercial order, the court adopts a very broadly criteria in the protection of such photos. If the student could quote the Article 13 of the Implementing Regulations of the Copyright Law stipulating that in the case of a work of an unknown author, the copyright, except the right of authorship, shall be exercised by the owner of the original of the work, it is not impossible to obtain the favor from the court.
Furthermore, if the photos could not be protected by the Copyright Law, the student could also quote the Article 2 of the Anti-Unfair Competition Law stipulating that in carrying out transactions on the market, business operators shall follow the principle of voluntariness, equality, fairness, honesty and credibility, and observe generally recognized business ethics.
In closing, be reminded of the importance of entering into a confidentiality agreement prior to commercial negotiation. Still the student wrote that he once asked Youku.com to enter into a confidentiality agreement but was unissued as a result of Youku.com’s excuse. This shows that the student has the sense of law but with inexperience. Depending on the above analysis, everybody can know that the student has much more technically difficult to protect his rights. If they reached a confidentiality agreement, binding parties’ behavior, it made the student so much convenient to hold Youku.com liability of contract negligence and copyright infringement, and also improve his efficiency.
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You Yunting：86-21-52134918 youyunting@debund.com/yytbest@gmail.com
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