Whether using the Name of Another’s Work Constitutes Copyright Infringement or Unfair Competition

Abstract: The Copyright Law and the Anti Unfair Competition Law supplement each other, but they also compete with each other. In the case introduced in this article, the first instance court denied the copyright infringement claim, but confirmed liability under the principles of unfair competition. This seems to be logically contradictory, and the court in the second instance corrected this glaring mistake.

(By Luo Yanjie Unfair competition refers to an operator’s misconduct that violates principles of fairness, justice, and good faith; it is also considered any behavior that violates widely adopted commercial ethics. As for copyright, as a kind of exclusive right, it mainly focuses on granting the right holder a monopolistic right in conformance with the law, and thereby grants the right holder monopoly rights as well as a competitive advantage through the exploitation of his/her own intellectual works. In this particular aspect, it shares a similar purpose with the Anti Unfair Competition Law. For this reason, the Copyright Law and the Anti Unfair Competition Law supplement each other, yet on the other hand they also compete with each other.

Case Summary:

Mr. Zhu Deyong, is the author of the noted comic “Things about Working in the Office” (the “Comics”), while Mr. Liu Yiwei is the anchor of the program “Issues about Work in the Office” (the “Program”), which is jointly produced by CBN and the Shanghai Weizhong Company, and has been recognized as the first light comedy styled TV talk show in China. In 2010, Mr. Zhu filed a lawsuit in court against the Program, claiming it had infringed the copyright of his work and unfair competition had resulted. The main basis for his claim was that the name of the Program is similar to his comics, and also in the Program one can hear the slogans and symbolic statements well known in his comics. Therefore, the author demanded the defendant apologize to him on the BTV Finance channel.

According to the judgment in the first instance: despite the Talk Show Program having adopted a similar title, poster and short film using the name, and content found in the introduction of Chapter 1 in Zhu’s work, what Zhu claimed is only the book’s name and part of the content of his work, which comprised a small part of his work, and could not be considered a core part of his work. Moreover, the Program never adopted the content of the Comics. Based on these facts, the first instance court determined that the appearance of the above same or similar content was not adequate to if there was infringement against the copyright of the comics. As for the claims of copyright infringement and the apology, the first instance court denied them.

In terms of unfair competition, although Zhu had not been engaged in the TV program production or its operation directly, as the author of the Comics, in addition to licensing others to publish or issue the book, he/she also had the right to commercialize the work, which also included licensing to others, or through cooperation with others adapted the work into films and TV programs, and therefore gain monetary interest from that. The Copyright Licensing Agreement submitted by Zhu demonstrated this. For this reason, it could be decided that Zhu is competing with Weizhong Company and CBN with his Comics works.

Due to both the Comics and the Program being related to occupational issues, and their readers and audiences being quite similar to each other, and in further considering the similarity of their titles, any adoption of the poster or short film of the Program would make the public link it to the comics, and ultimately Zhu’s interests would be damaged. Hence, the first instance court decided the adoption in the program to be misleading propaganda and could constitute unfair competition, and based on this, the court determined that the producer and broadcaster shall compensate Zhu RMB 50,000. Yet, Zhu was dissatisfied with the judgment, and appealed to a higher court within the lawful period.

The second instance court found, despite the similarity between the accused title, short film and poster of the Program with Zhu’s work, that the adopted parts were only the title or part of its content, and only took a very small proportion in the work, which did not constitute the core or substantial part of the work. For this reason, it was not adequate to find copyright infringement.

As for the judgment regarding unfair competition, the Program’s name was apparently determined to be quite similar to the title of the comic work, and as found in the short film and the poster of the Program, one could see the similarities as described in the Chapter I of the comics. However, this content as judged by the above standards were actually not misleading or false propaganda concerning the quality, producer, content or origin of the work. Moreover, the involved Comics are presented as a comic strip, while the Program is a TV show with no fixed plot, making the two works being expressed in two different ways. According to the public’s daily experience, they would not associate them together, and they will not mistake them either. Actually, the Program didn’t adopt any content within the Comics, and therefore it could not demonstrate the above propaganda would be enough to mislead the public.

Furthermore, the “office work” is a social phenomenon, and is also a topic that anyone can discuss. The association between the Program and the Comics is only appearing in the same part of “work in the office”. Mr. Zhu could not prohibit others from creating any work on that topic due to his creation of the Comics, or otherwise society’s interests would be damaged. Therefore, Mr. Zhu’s claimed infringement accusation is not illegitimate, and it would not damage Zhu’s interests over his work either. On the other hand, the social order would also remain uninfluenced. Hence, the unfair competition would not be found. The second instance court therefore refused Zhu’s claims.

Lawyer Comments:

The case is a typical one concerning the combination of unfair competition disputes and copyright disputes, and our analysis is as follows:

1. The basic requirements of originality of a work in the Copyright Law

According to the Copyright Law of China, to constitute a work in the Copyright Law, it shall first appear to be “original.” Although the so-called “originality” is not referring to the quality of the work, but as shown in this case, the law has a basic requirement for “originality.” Despite in the Program, no matter the title or the quotation from the Comics, they are all quite similar to the parts that could be found in the Comics, but as found the first instance court and the second instance court, the same part involved is too short, and could be adopted as the daily phases in life, which could only be protected when appearing as part of the Comics, yet not be protected in law independently.

II. The standard to determine unfair competition

According to Article 2 of the Anti Unfair Competition Law, unfair competition shall refer to any conduct that violates the law and could damage the interests of other operators and disrupts the social economic order. Although the regulation in the law, the unfair competition occurs among the operator, in this case, both the first instance and the second instance court all confirmed competition between Mr. Zhu and the defendant. Due to the court thinking Mr. Zhu would adapt his work into the product, which could be included in the right of commercialization. But that broad definition has definitely expanded the protectable scope of the right holder.

However in the case, to determine whether it could be unfair competition or not, and why the first and second instance courts could make such different decisions, it mainly comes from the different opinions regarding whether the name of “issues about the work in the office” would lead confusion and mistakes among the consumers. For this point, to our understanding the opinions of the second instance should be correct. Because, the “issues about the works in the office” is a TV program, the consumer would be less likely to associate it with the same named comics. To further consider both courts confirming that the comics could not be adopted as the independent work, that means the originality of this part of the work is low, and could be included in daily speech. And since it could only be deemed as daily speech, how could it lead to confusion among the consumers? Therefore, to judge it from this point, the second instance court’s decision is more logically reasonable.

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