Category Archives: Settlement

Why China‘s Courts Decided the Enterprise’s Use of “Personal Edition” Software Constitute Non-infringement?

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(By Luo Yanjie) Rhino Software Inc. developed the Serv-U software, a kind of widely adopted FTP server terminal software to help the transmission of documents on websites. In recent years, Rhino Software Inc has been continuously trying to enforce its rights against unauthorized use of Serv-U in China, but the results are not satisfied. In our previous Questions and Solutions to Enforcement of Rights Protection By Overseas Software Enterprise in China, we had analyzed the reasons why Rhino Software Inc encountered obstacles in its protection. That the trial version for 30-days free use made Rhino Software Inc unable to the affirmation of infringement was the reason why Rhino Software failed in today’s post.

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How Many Ways would be Available to Protect Online Copyright?

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 (By You Yunting) Within the World Intellectual Property Day approaching, Zhihu.com invited me to answer some questions about the popularization of intellectual property rights with the second topic below regarding what channels of online copyright enforcement would be available in China.

Yesterday, we discussed what are the difficulties in the online copyright enforcement in China. With different types of infringement, today I will discuss how to protect online copyright. Actually, there are three channels consisting of online criticism, complaints and litigation.

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What are the Difficulties in the Online Copyright Enforcement in China?

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(By You Yunting) Within the World Intellectual Property Day approaching, Zhihu.com invited me to answer some questions about the popularization of intellectual property rights with the first one below regarding what the difficulties are in the online copyright enforcement in China.

The Copyright Law aims to protect many types of works, including cinematographic works, television, written works, works of fine arts and graphic works. However, there are different kinds of infringement. When referring to whether relates to Internet, it can distinguish into online infringement and offline infringement. When referring to the infringement methods, it may include unauthorized reproduction and personate plagiarism. When talking about infringing any specific rights, it may discuss the right of modification, the right of integrity and so on. Now that I think about it, I’d like to narrow it down to a topic regarding what difficulties are in the online copyright enforcement China.

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Symantec Corporation Uses both Criminal and Civil Methods to Defeat Piracy in China

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    (By You Yunting) It is well known that China is facing a serious problem over piracy. When claiming for his enforcement over cases suspected to involve criminal offences, the right holders often report to the Police attempting the use of criminal laws to strike with piracy. Furthermore, in accordance with Chinese laws and regulations, upon the completion of criminal proceeding, the party against the piracy may, on the basis of criminal judgment paper, file civil lawsuits against the pirated to receive compensation. Today we will introduce a case concerning Symantec Corporation’s enforcement against the pirated party, where Symantec Corporation instituted lawsuits against the pirated, as well as the companies which contributed to make pirated CDs and print the envelopes of the pirated software. As such, its lawsuits and claims are being backed by Shanghai courts.

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Should Qian Zhongshu’s Letter Manuscripts be Protected After He Passed Away?

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(By You Yunting) Abstract: In the proceedings of Qian Zhongshu’s letter manuscripts, in ruling whether the privacy right of decedents to a person should be protected by laws, the court decided that the relevant letters and manuscripts are irrelevant to the public interest and thus are private. However, the protective scope of the privacy right between the decedents of a person and a currently living person is different, and the protection of privacy right of decedents is weaker than the right of the public to be informed. The auctioning of these letters and manuscripts would, if it didn’t act to harm the reputations of Qian Zhongshu’s successors and relatives, not constitute an invasion of privacy.

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

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(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:

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Why China Court Believe Google Books’ Scanning of Books Constitute Copyright Infringement?

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(By Luo Yanjie)Abstract: The fair use system in China adopts a legislative model of “exhaustive listing”, and many judicial breakthroughs in recent cases appear to be more in conformity with principles of fairness and impartiality. Copyright Infringement against the right of reproduction shall be prohibited. However, an interesting question is whether the infringing party assumes liability for damages in cases where the copyright owner doesn’t actually suffer any losses.

Google Books has triggered global protest and litigation from publishers worldwide. The following is an introduction to a case that developed in China.

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Introduction to China Courts’ Evidence Preservation System in Software Litigation

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(By You Yunting) China’s computer software infringement is very severe. In litigations of cracking down on computer software infringement, however, how to fix infringement evidence is always a real problem for right holders. In practice, there are two means of computer software evidence perseveration: one is evidence preservation taken by the right holder, and the other is applying for the court to take evidence preservation.

Right holders always would like to take pretrial evidence preservation in network software infringement, cases of installing infringing computer software in public places such as Internet bar. As for enterprises that use unauthorized software for commercial use in workplaces, however, in most cases, evidence preservation is taken by the administrative authorities of copyright or people’s courts. At present, China’s administrative organization have involved less and less in software infringement litigation, because the mainstream opinion is that administrative organizations shall handle with the cases involving in infringing public interests whereas software infringement cases regarding as civil disputes between right holders of software and unauthorized users of aforesaid software shall be settled down though civil proceedings. In our today’s post, we would like to introduce some legal ground of software pretrial evidence preservation taken by the people’s courts in China.

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Can a database be Protected by the Copyright Law in China?

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Abstract: in order to be considered a compilation, such works should typically possess a number of characteristics, such as the selection or arrangement of the data, and the originality in the presentation of said data. In other words, compilations generally require a modicum of originality and ingenuity present in order to receive some form of protection as an original work.

(By Luo Yanjie) Generally, the copyright of a database protects the arrangement of the database rather than to the contents. The case in today’s post demonstrates this point, and at the same time, provides a bit of good for thought. The following is the introduction to the case.

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Is RSS Output in Websites Kinda Fair Use in the Copyright Law?

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 (By You Yunting) A user on Zhihu.com asked some question about RSS

  1. Is it kinda fair use of RSS?
  2. Is it kinda fair use to transfer the excerpt context RSS to the full text RSS?
  3. Is it kinda fair use of Flipboard and similar applications’ excerpt context which do not use RSS?

In terms of the first question: ,Is it kinda fair use of RSS?

If a website supports full content RSS output, then it is actually the using on the license of the copyright holder instead of the fair use. While, where a website only supports excerpt context RSS and if a third party scraps the content into a full context RSS, it is infringing as it has used the content without any license.

Let’s first check the definition of RSS. We could find a clear definition in Wikipedia (http://en.wikipedia.org/wiki/Rss.): If a website placed the RSS file on its page, user could use a RSS feed to read the latest contents if he cannot open the content page. Based on the said character of RSS, in author’s opinion, RSS actually is a form of authorization from the site owners. If the website provides RSS file, it licenses users to read the content without visiting its website. According to the Copyright Law, Fair use means that under the specific circumstance we can use the content without the copyright’s holder’s permit and with payment of remuneration. The transliteration of a published work into Braiile and into minority nationality languages and free performance of a published work belong to fair use.

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Could NetDragon’s Providing Plants vs Zombies 2 Be Protected under the Safe Harbor Principle?

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(By You Yunting) In recent days, Plants VS Zombies 2, the sequel to the global hit game Plants VS Zombies, came on the market in Apple’s AppStore in Australia. Afer initial release, millions of users downloaded the app from the Australia store. In China, however, the situation is quite different. As reported by the media, within the first 24 hours of the game’s release, many unlocked versions of the application were uploaded to third party media providers, like ZS91.com, and that the encrypted in-game items had been cracked.

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Why China Court Protects Violation Against GPL License Agreement?

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(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.

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Using Counterfeit Software to Manufacture Hardware May Constitute Copyright Infringement by the User

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(By Luo Yanjie) Using another party’s copyrighted software,  and combining that technology with specific hardware product to produce a similar product may constitute copyright infringement. When determining whether such action constitute as a crime, the penalty may be calculated by the total value  of the hardware and software products,

When employees of high-tech companies leaves their employment, they may cause their former employer huge financial losses if they illegally uses the technology or software they obtained from their former employer. Therefore, companies generally take preventive measures with its employees by methods such as a duty not to compete or a non-disclosure agreement. For serious offenses, companies could consider filing criminal charges. In this post, you would see one such typical case.

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Why Hainan Netcom Is Judged Infringement Liability for IP Addresses It Manages?

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(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.

Case Summary:

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China’s Courts Found Non-Infringement for Unauthorized Remake of Song

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(By Luo Yanjie) Abstract: The scope of the statutory license includes the manufacturing of the audio recording, and also includes the distribution of the work afterwards. Judging from the latest case, the written statement of the right holder must explicitly exclude the application of statutory license, and cannot simply exclude it by claiming “chasing any infringement.”

The statutory license provided in the Copyright Law is to prevent a monopoly in the music market, but the law also regulates that the right holder has the right to exclude that license. ” However as to what kind statement shall be made within such exclusion statement, we have found no such regulation in law. According to the case described in this essay, the recording industry tends to use the term “copyright reserved, and infringement chased”, which in fact is not within the scope of the license due to the followings:

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