Category Archives: Settlement

China Court’s Injunction Ruling: the Auction Company Shall Not Sell Qian Zhongshu and Yang Jiang’s Letter and Manuscripts

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(By You Yunting) As reported by Guangming News (note: the link is in Chinese), Beijing No.2 Intermediate People’s Court ruled in recent to demand the SUNGARI Auction Firm (the “SUNGARI”) not to carry out any conducts which would infringement the copyright contained in the letters written by Qian Zhongshu, Yang Jiang, Qian Yuan to Li Guoqiang. In the previous posts, we have put forward our opinions on the issue (post 1 and post 2).

According to the report, the court ruled that:

1. As the tools to communicate emotions, exchange ideas and discuss issues, the letter is generally the literal work finished by the writer basing on his/her independent thinking, and could be the work protected in the Copyright Law. Its copyright shall be owned by the author, who is namely the sender.

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How to Divide the Burden of Proof in Software Infringement Cases in China?

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(By Luo Yanjie) Abstract: In software infringement lawsuits, the plaintiff shall demonstrate itself as the rights holder of the software involved and the “substantial similarity” of the defendant’s software with its own. On the opposite side of the coin, once a defendant counters by claiming that no infringements have been made, it shall present relevant evidence; otherwise, it shall bear any disadvantages resulting from the failure to present proof of a lack of infringement. As for the case described in this essay, although it involves open source software, no definitive solution has yet been made to solve this particular legal program, to our disappointment.

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Could Yang Jiang Prevents the Auction Off of Qian Zhongshu’s Letters with Friends?

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(By You Yunting)At first, the author would like to make a digression statement: in the article “Would Tencent Take the Copyright of Contents Published by Users on WeChat?”, the author analyzed the misunderstanding arisen by the Tencent User Agreement, and after its publication, Tencent modified its agreement, by which the original article has been amended into “For the contents created by the user when using the service herein provided, its IPR shall be the property of the user or the related right holder.” The author deeply appreciates their quick acceptation of the advice.

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

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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.

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Is It Illegal to Auction off Qian Zhongshu and Yang Jiang’s Letter Manuscripts?

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(By You Yunting) Recently, we noticed that a Beijing-based auction company was interested in selling letters and manuscripts, including those from the couple Mr. Qian Zhongshu and Ms. Yang Jiang (it should be noted both Mr. Qian and Ms. Yang are noted scholars in China). In addition, we have also seen letters from their daughter Ms. Qianyuan to Li Guoqiang, the chief editor of Hong Kong based magazine Guang Jiao Jing, and a manuscript of Mr. Qian’s work. In the meantime, some of the letters’ content has been disclosed to the media; in fact, following these disclosures there was apparent dissatisfaction from Mr. Qian’s widow, Yang Jiang, alleging that these public disclosures were in fact a violation of one’s private communication, and any public disclosure, by the media or otherwise, would be considered improper.

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Can Software User Interface be Protected by China Copyright Law?

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Abstract

(By Albert Chen) User Interfaces (UI) are generally excluded from copyright protection, because a UI simply allows the software to be used by displaying various methods of operation; that being said, because UIs are all essentially limited by incorporating similar functions, similar kinds of software inevitably reach creative limits in expression of UI layouts and specification of features and functions. Looking at UIs in another way, the basic UI layout and framework essentially enter the public domain, and ergo are not afforded protection under the Copyright Law.

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

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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.

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Is a Copyright’s Creation Time Important for Deciding Copyright Infringement?

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(By Albert Chen) In 2010, Getty Images China (“Getty China”) filed a copyright infringement suit against Sinotrans Chongqing Co. (“Sinotrans Chongqing”). After the first instance, second instance, and review, the Supreme Court confirmed the copyright held by Getty China over the pictures involved in the case. The point that deserves the most attention in the case is the different understandings on whether the creation date of the copyright is an essential requirement for showing infringement.

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Is School Teaching a Method of Publicizing Work in China?

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(By Luo Yanjie) According to the Copyright Law, the copyright holder has more than ten exclusive rights. Because of the many kinds of works and complexity of society’s use of the work, the copyright holder is often unclear about the differences between the exclusive rights and may have a very vague understanding of the fair use system, a system which can cut against the copyright. Although the case introduced in this essay is fundamentally not a rights protection case, the judgment clarifies the methods used for publication and expands the scope of the fair use copyright exception. The following is a summary and analysis of the case:

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Will Magic be Protected as A Work under China’s Copyright Law?

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(By Luo Yanjie) Magic has long been a popular medium with which to entertain an audience, and how one should legally protect magic has long been a problem in the law. This problem has become especially obvious now that we have seen arguments regarding magic and the requirement that an expression be “original” as stipulated in the Copyright Law. Today, we would like to introduce to our readers how China protects magic works based on a case heard by the Beijing No.1 Intermediate People’s Court, which can be considered the first established case concerning the magic work.

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The Shanghai Branch of CIETAC Changed Its Name

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Today, we noticed an announcement published on the website of the Shanghai Branch of the China International Economic and Trade Arbitration Commission stating that it has changed its name to the Shanghai International Economic and Trade Arbitration Commission (the “Shanghai Commission”). At the same time, it will begin to use the name of Shanghai International Arbitration Center. Additionally, starting on May 1, 2013, the Shanghai Commission will begin using new Arbitration Rules and a new arbitrator name list.

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How Does the Federal Trade Commission Decide Whether Intellectual Property Licenses Violate Anti-trust Laws?

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Day Five of the US Visit II

In late March, the author had the opportunity to make a journey to the United States at the invitation of the U.S. government in order to better understand how the US intellectual system operates. On the fifth day of the visit, the author went to the Federal Trade Commission (the “FTC”), and the following is a brief record of his visit there.

The FTC is the administration in charge of investigating and taking action against unfair competition and anti trust in the US. During the visit, FTC officials showed us a map showing that as of 1900, only the US and Canada had enacted competition laws, including unfair competition law and the anti trust law. Later by 1960, Sweden, France, and Japan passed legislation on competition. By 1980, many countries in Europe and South America passed competition laws, as well as Australia, India, Thailand, and South Africa. By 2012, almost all states of the world had laws in that field, except for a few African countries.

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US Industrial Representative’s Interpretation on the Impossibility of Charges in China’s Music Industry

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Record IV of Day Four of our U.S. Visit

(By You Yunting) In late March, the author had the opportunity to take a journey to the United States at the invitation of the U.S. government in order to better understand how the U.S. IPR system operates. On the fourth day of the journey, the author and his associate visited the International Intellectual Property Association (the “IIPA”). The following is the brief record of our visit there.

The IIPA is a copyright protection organization consisting of the Association of American Publishers (the “APP”), Business Software Alliance (the “BSA”), Entertainment Software Association (the “ESA”), Independent Film & Television Alliance (the “IFTA”), International Visual Art Association (the “INTVAA”), Motion Picture Association of America (the “MPAA”), National Music Publishers’ Association (the “NMPA”), and the Recording Industry Association of America (the “RIAA”).

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Why did the US Rule that iPhone Jailbreaking is Legal, but iPad Jailbreaking is Illegal?

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Record III of Day Four of Our Visit to the United States

(By You Yunting) At the end of this past March, on the invitation of the US government, the author visited America with other Chinese legal experts with the goal of better understanding its IPR system. On the fourth day of the journey, the author visited the Copyright Office of the US Library of Congress (the “US Copyright Office”). The following is the brief record of the visit on that day.

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Is a Notarization Made under False Pretenses for the Purpose of Evidence Collecting Valid in China?

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(By  Luo Yanjie) In a civil lawsuit, the collecting of evidence for the purpose of notarization is quite common. However, during the process of collecting evidence that concerns the selling of infringing goods, the rights holders or their attorneys typically utilize a system of collection in which they set up a “customer” to purchase the infringing product as evidence of infringement. So the question is, should evidence collected in this manner be considered legally effective for the purposes of a lawsuit for infringement or unfair trade practice? For our understanding on the issue, and our experience in this decidedly complicated process, we would like to share with our readers today’s post concerning our opinions on the issue:

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