Category Archives: Non-litigation

How to Judge the Copyright Holder of Musical Works

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 (By Luo Yanjie) Previously, we introduced how to determine the copyright holder of cinematographic works, and today we would like to continue by introducing how to determine copyright ownership of musical works. Similar to cinematographic works, we have confronted situations in infringement cases in which it is difficult to determine the copyright holder of musical work. For example, in one case the copyright conducted in mainland China was licensed by an overseas rights holder, but the name in the signed and issued license was different from what was written on the original CD. Although the issue might have come from a mistake in the translation, it still created a real obstacle for the rights holder. Now, let’s take a look on the way to determine the copyright holder of musical work in China.

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How to Judge the Copyright Holder of Cinematographic Work in China?

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(By Luo Yanjie) In a previous infringement case against cinematographic we handled, the plaintiff submitted several articles of evidence to the court, which showed that the work belonged to different copyright holders: according to a certificate issued by the Hong Kong Copyright Center, it was Copyrighter A’s property while the subtitle authorship rights belonged to Copyrighter B. And yet, as demonstrated by a license agreement, C shall be the exclusive holder of the copyright. That made the plaintiff argue for his ownership of the copyright. In fact, due to the complexity in determining copyright ownership, contradictory disputes like the one described above are quite common in actual practice. In today’s post we will share our understanding of the issue.

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How Long Is the Copyright Protection Period of Foreign Companies and Individuals in China?

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By You Yunting

A reader asked: Does Chinese law protects the copyrights of foreign companies and individuals? And, how long is the protection period? Today’s post will discuss this question.

I. The three requirements for granting copyrights to the works of foreign individuals or companies

Whether or not the work of a foreign person, company, or stateless person enjoys the copyright protection period depends on whether or not they qualify as a Chinese copyright holder. By Article 2 of China’s Copyright Law, one of the following three conditions must be met:

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Chinese Tech Websites Begin to Pay More Attention to the Copyright of Translated Work

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By You Yunting

The competition among Chinese tech websites is fierce, and in order to gain an advantage in the battle, many translate essays from American blogs into Chinese and publish them on their websites without permission from the author. Recently, apple4.us, a China-based tech blog, announced they will no longer translate essays without authorization. Furthermore, they will withdraw all past unauthorized translations and ask permission from the authors.

Here is the whole story: Lawrence Li (李如一), an author for apple4.us, translated What Is and Is Not a Technology Company by Alex Payne without authorization and posted it on apple4.us. An editor of Donews, a tech blog under Qianxiang, asked Mr. Li and another apple4.us writer, Hu Wei, for authorization to reproduce the translated essay. Despite never giving confirmation, Mr. Lee later found that Donews had reproduced the essay.

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Unauthorized Derivative Work Still Receives Protection Under China’s Copyright Law

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By Luo Yanjie

The copyright holder of Pleasant Goat (喜羊羊), a popular Chinese cartoon figure, recently brought actions against the unauthorized use of the character in Flash games on several game websites. According to Chinese copyright law, the copyright holder must give permission to use art in a game, otherwise it will result in infringement. This is easily understood. But, if such an unauthorized game is then used on another website without the original developer’s consent, does this infringe the interests of the game developer? Today’s post will discuss this problem. In my opinion, even if the game developer used the cartoon character to create software without authorization from the copyright holder, the software still receives protection under the Copyright Law, but its protection has definite limits.

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Is It Lawful for News Websites to Demand Payment of Fees for Google and Baidu Searches

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(By You Yunting) According to a report in the New York Times, as also reported by some European websites, Google is recompiling its searched news results as a news page. It may be said that this method could infringe the copyright of the original publishing websites and, as a result, Google should pay fees for the websites. This idea has received support from both the French and German Governments, yet Google believes that its behavior fully conforms to the law, and thus should not have to pay any fees. In China, the main search engines Google and Baidu provide this kind of news search service, and today’s post will discuss whether it is lawful for news websites to claim fees from the search engines.

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Introduction to Copyright Protect on Clothing Design in China

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By Luo Yanjie

The clothing has been long seen the most afflicted field of IPR infringement, and in addition to the common trademark infringement, the pass off on the design or model developed by others is also ubiquitous. To pass off the design of the clothing is of no way to be protected by trademark law, for which shall be covered by the copyright law. Considering the clothing itself is not the statutory protective object in law, how to protect the design of clothing is also among the long argued topics. In today’s post, we would discuss over the issue.

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Is It Illegal to Unlock or Jailbreak iPhone and iPad in China?

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By You Yunting

A friend asked me a question: why by the latest USA legislature, to unlock iPhone shall be against the law, while it is permitted by law to do so for iPad? This question is complicated on essence, and it actually involves two restrictions designed by Apple on its devices.

On the initial launch of iPhone, the exclusive operating partner of Apple for its new device in USA was AT&T, and therefore it built the capability into the phone so as to ensure only the AT&T would be service network. Later on, as detained a slow internet speed, such a SIM lock was soon been unlocked, and from then on other operator could serve the users with iPhone.

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Analysis on Copyright Risks of Duowan YY Music

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By Luo Yanjie

According to a recent news report (note: the link is in Chinese), the Huanju Inc (namely duowan.com), the holding company of YY.com submitted the prospectus to SEC of USA, applying for the IPO in NASDAQ for $ 100 million funding, and the code of it is YY. As indicated in the prospectus, the achievements of YY music have been the most bling-bling part. YY music is actually the music channel of YY instant messenger, introduced in March of 2011, and mainly broadcasting live shows of music performance. The performer could interact with the spectators by Karaoke, singing match or live videos. Furthermore, amounts of virtual products are available on YY music, which could be got on payment or as gifts. Yet to the statement of someone skilled in the art, the mode of YY music is facing the copyright risk. Today’s post would share our opinions on the issue.

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Key Points to Foreign Company’s IPR Litigation Preparation in China

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By Luo Yanjie

With the development of economy, China pays more and more attention to the protection of intellectual property. But whether the patent, trademark or copyright, a lot of high value intellectual property rights belong to foreign companies. Facing the still serious infringing situation, the civil lawsuit is still the most common and reliable means to strike infringement. As for foreign investors, what deserves the attention when preparing lawsuit materials? Today we would like to share the topic with readers as follows:

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Legal Analysis on Apple’s Lose in APP Store Infringing Contents of Beijing Litigation

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By Luo Yanjie

Recently, a reporter of TechWeb interviewed You Yunting of our website about issues of Apple providing infringing content as follows:

1, Lots of China writers have sued Apple Inc because its App Store violated their copyright; Encyclopedia of China Publishing House (EPCH) win the case and get 520,000 as compensation. How do you see this kind of cases? Can it become the flag case of mobile Internet copyright?

Personally think it is more suitable to say that it is a flag case for APP Store of Apple, the main significance is as follows:

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When Could “Fair Use” Other’s Works in China?

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By Albert Chen

Techdirt recently reported the US court has adopted scanning within the scope of fair use, and by China Copyright Law, the library could also make a special copy or digitalize its collection, as well as the communication. Today, we would introduce the statutory license in Chinese legislature.

As known to us, the using of others work demands the right owner’s consent and the payment of the royalty (unless no payment as approved by the right owner). But as aiming to promote the cultural development, the emphasis on the exclusive right protection could only damage the spread-out of the culture and information. Thus, in addition to the protection, we also see Copyright Law regulates the “fair use” of the works, under which the using by a third party shall not be approved by the right owner or to pay the royalty.

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Why China Is Not Among Top 20 Countries of Pirated Music Download?

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By You Yunting

Musicmetric, a website in USA, published the top 20 countries of pirated music download, yet to most ones’ astonishment, China is not found on the tally, who is commonly accused of granting least protection on IPR. Then what contributes to the surprising result? In today’s post, you could find our answer to it.

I. Most online music services are using the copyrighted ones

Unlike chargeable music download in iTunes or through P2P in USA, most users in China tend to get their free music by search engine, or download or listen to them by music software. The most popular music service now in China is from Baidu (NASDAQ: BIDU) and Tencent (SEHK: 700), whose music library is mostly licensed by the main recorders around the world.

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Analysis on Application of Red Flag Rule in China

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By Luo Yanjie

Recently, Shanghai No.2 Intermediate People’s Court issued “Investigation Report about Infringement of Right of Information Network Dissemination in the Area” which introduces the application of “red flag” principle in China. Today we would like to share the topic with readers as follows:

I. The basic concept of “red flag” principle

“Red flag” principle is an exception of “safe harbor” principle. It means if the fact of infringement obviously like a “red flag” flying, network service providers cannot pretend not to see, or to shirk responsibility as not knowing. In this premise, even if the right people have issued a notice, the court should also identify the Internet service provider is aware of third party’s infringement and shall bear tort liability.

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