Category Archives: Copyright

What Legal Risks for Cloud Storage Providers in China?

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By Luo Yanjie

Recently, the 115 net disk (the “115.com”,Alexa Rank No.519), a famous cloud storage service provider (the “provider”) in mainland China shut down the sharing function of its product, and that has drawn the attention from the public media. With the shut down, the external network user could no longer download the resources from 115.com links, but 115.com replied that such a measure is to prevent the copyright risk and an action shall be taken sooner or later. Other main cloud storage providers in China like Dbank of Huawei, Kuaipan of Kingsoft (HKEX: 3888), the Vdisk of Sina (NASDAQ: SINA) still provide the content sharing service, and so far we have got no news whether they will follow 115.com in the future. Then what risks may online disk providers face for copyright infringement? The following are our opinions on it.

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Why the Cybercafé could be Exempted from the Liability of Pirate Video Broadcast?

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By You Yunting

In the past few days, a Beijing court published a case (note: the link is in Chinese) involving a cybercafé who has purchased the Video-on-demand (VOD) system, and that made the court refuse the claims of the plaintiff though the right holder proved the piracy in the VOD.

VV8.com Company, a professional video system provider to cybercafé invested by IDG and Disney, detected the pirated TV drama against its copyright in the video system of a cybercafé. And then, the right holder filed a lawsuit against the piracy. The cybercafé afterwards argued that the system was purchased by it from Hero Inc. Company, who is a third party video provider, and in that transaction, both parties has agreed that all the copyright dispute shall be handled by Hero Inc.. Moreover, all the contents in the system are updated and ciphered by Hero Inc. with remote control, thus the cybercafé could not delete any videos in it. In the lawsuits, VV8.com expressed no intention to add Hero Inc. as the co-defendant and make no claim thereby.

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Which Part of Medical Instruction Could be Protected by China Copyright Law?

By Luo Yanjie

In recent, the Supreme People’s Court of China asked for public opinions on “judicial protection on the medical instruction’s copyright and the definition of its legal boundary”. The lawyers of our website are confronted with the same problems in practices: shall the instruction be protected by the copyright law? So, in today’s post, we would like to share our opinions on the copyright protection of the insert with the reference to our past cases and experiences.

I. Could the instruction be the works on law?

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Is the Second-paid Right of Audio-visual works in Draft Copyright Law Feasible?

On the 6th of July, the State Copyright Bureau published the second copyright law revision draft (hereinafter referred to as “the second draft”), which removed the “phonograms compulsory license” clause and the collective management organization’s “extended management” clause those are controversial in the first draft. The removal is welcomed by right people. In spite of this a new rule in the second draft caused controversy by the Movie Company and investors which is so-called “second paid right” of right people and related individuals. Industry insiders point out, the rule of “second paid right” will lead to the circulation payment which will increase the cost indefinitely. It will cause a negative effect to movie industry’s development. Today, we would like to introduce the rule of “second paid right” and share ideas as follows:

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Shall Figure of Mickey be Protected by Copyright Law in DPRK?

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By Albert Chen

Mickey Mouse’s showing up in the show for Kim Jong-un, the new leader of DPRK, has provoked the coverage of news reports worldwide. The swift reaction by Disney stated that “This was not licensed or authorized by The Walt Disney”, which in turn made the event gather more controversy. Moreover, the State Council of USA also expressed its concern on the issue.

Not limited to the politics behind the event, the copyright matters involved in the character performance is also very interesting. This brings forth the question; does the performance constitute the infringement against Disney? In my opinion, the answer to the question shall lay on the answers to another two more basic questions: 1) Is Mickey Mouse still in his protection period? 2) Could copyright be protected through DPRK and USA?

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Analysis on Lawsuits and Arbitration in Domain Name Dispute Settlement System in China

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By Luo Yanjie

According to a news report, Apple filed arbitration in June over “iPad 3.com” in WIPO, and claimed the adjudication to grant it the domain name. So far as is known this week, Apple is said to have received the internet address, and the registration information of iPad 3.com, and has now been updated, transferred from Global Access to Kilpatrick Townsend & Stockton; the law firm entrusted by Apple.

The development and popularity of the Internet has increased the weight of domain names to the companies, especially for those engaged in the Internet industry and to them the domain name is playing the main role in propaganda with the replacement of trademark to some extent. Therefore, the domain name has been one of the main battlegrounds of the Internet or IT companies, and that thereby has brought many disputes. Due to the fact that the domain name is unified in global standard, the dispute concerning the domain name could be mainly settled in arbitrations (like Apple did in the case above, while it’s a little different from the contractual arbitration as specified below) and lawsuits. Now, we would like to introduce you how these two settlement methods applied in China:

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Legal Analysis on Program Format Protection

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By Luo Yanjie

China’s Got Talent broadcasted on Dragon TV has seen its 4th season this year, and during the past couple years, the show has been one of the most popular interactive reality TV shows in China. The main reason contributing to the show’s success is its high production level and the claimed license from British copyright owner which makes the program the true Talent like its British and American equivalents. However, in fact, Dragon TV’s statement is not legally accurate by China Copyright Law for the show is kind of transfer of the British program format. Today, the essay will tell you shall the program format be protected by law and what kind protection it is.

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Analysis of App Store’s Obligation under China Copyright Law

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By Zhan Yi

Highlight

At the beginning of 2012, Apple Inc. (the “Apple”) was sued by some noted local writers in China for copyright infringement. This aroused wide concentration amongst the public on the copyright issue in App Store. Will Apple be liable for the free or paid download by law? The answer to this question, in my perspective, shall focus on the determination of its legal nature which shall be considered within the regulations of the copyright law based on App Store’s commercial and technological model of App Store.

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No Infringement of SONY TV’s Unauthorized Cartoon Playing

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By Luo Yanjie

In our past post “How Sony Can Avoid Copyright Risk”, we gave our legal opinion in the copyright infringement charged against SONY. And in that case, SONY integrated the function of networking in a type of its TV products, by which the consumer could watch the cartoon produced by an animation company after registering its TV and the application for an account on an appointed websites under the instruction of SONY. The animation company sued SONY and the website in Beijing after detaining the infringement.

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Data of Copyright Infringement Combat from 2006 to 2010 in China

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By the Economic Daily, during 5 years from 2006 to 2010, the administrative punishment on piracy judged by the copyright offices of each level totaled 49, 416, 1,653 transferred to the judicial organ, 128, 493 illegal operating units have been cancelled, 3, 507 dens have been investigated and 317 million pieces are captured. And in addition to the daily supervision, the special act on infringement combat by the administrative organs have been conducted for continuous 5 years, special act on illegal preinstalled pc software for continuous 3 years and promotion of genuine software using in companies for continuous 5 years.

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Traditional Internet VS Mobile Internet: Any Difference in Law Application?

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By Luo Yanjie

With the popularity of the smart phones in the modern society, we have seen an explosion development of the mobile internet. And by some statistics, the data traffic of the mobile terminal has occupied 10% of the total on the internet, which has been taken as the most important growth point of technology in the coming several years. Meanwhile, the explosion also adds fuel to the firing copyright piracy on the internet, and the convenience of the network also troubles the copyright owner in the right protection. And moreover, it also puzzles the copyright the law application in the mobile internet. Therefore, in today’s post, we would like to share our opinions and experiences on the issue:

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How to Apply for Evidence Preservation for IPR Trials in China

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By Luo Yanjie

In an earlier Microsoft’s case of right protection (Note: the link is in Chinese), the company applied for the evidence preservation to the court after they found the piracy using by others, demanding the perpetuation covering the pirated Microsoft software installed in the computers in the defendant’s business place. The application was accepted by the court, who thereafter sealed and checked the computers claimed and found each apparatus has been installed at least 5 types of software of Microsoft. Whereby, Microsoft gains the compensation of more than 1 million yuan in the following trials.

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Parody on Copyrighted Works Could Be Infringement? II

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the poster of the parodic World of Warcraft

By Albert Chen

II. Is it necessary infringing of parody?

Just like analyzed above, the “transformative use” may be the re-creation basing on the ideas, and also could be the re-creation relying on the “expression”. Therefore, the infringement of parody could not be determined in general and should be considered in situations.

1. The parody with transformative use of idea

The basic principle of Copyright Law is to protect the expression while such protection will not extend to the idea which is not detailed by the expression. Surely, there has regulated no specific standard or border between the abstract of idea and the concrete of expression, and that makes the judgment depend on the case analysis.

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Parody on Copyrighted Works Could Be Infringement? I

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the parodic portrait of ancient Chinese poet DU FU

By Albert Chen

On 7th June, 2012, the committee affiliated to Agencies for Cultural Affairs deliberated on the issues that could the derivative works and parody constitute the infringement to copyright (note: the link is in Chinese). And that marks the Japanese government facing up to the common problems KUSO in the country.

As a country with well-developed culture industry, Japan sees a large number of original cultural creations within the nation every year, including the cartoons, movies, games, etc. On the other hand, the derivatives of the existing works are also common in the country with the parody included. The trend of parody in Japan also influences the literature works of China, and thereby we see Lin Daiyu, the character in the noted A Dream in the Red Mansion, becomes a courtesan, the Monkey King begins to date with his master, and the generals in the Romance of Three Kingdoms have all been coquettes.

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