Category Archives: Copyright

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

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(By Luo Yanjie)

Case summary:

Yigal Messika is an Israeli magician. In March 2008, Messika began to design a tool used in his magic show named Tarantula, through the operation of which the audience could see floating art objects. Messika filmed a DVD recording his performance with the Tarantula. The Tarantula DVD went on sale in the United States on February 29, 2000, accompanied by the Tarantula gimmick. Each pair was sold for $ 75. Later on, Messika heard that his product was being ripped off by a Chinese businessman starting in April 2009. The copyright holder subsequently filed a lawsuit in court to protect the copyright infringed. The Court held that, because China, the US and Israel are all signatories to the Berne Convention, once the plaintiff’s magic met the standards in China’s Copyright Law, it could be protected by China’s laws.

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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.

(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.

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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. 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 judgement 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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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 Couldn’t the Trademark “Bond” Be Applied to Contraceptives?

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(By Albert Chen) The Beijing High People’s Court (the “Beijing High Court”) established the “merchandising right” in a 2011 judgment on an administrative dispute between the Trademark Adjudication and Review Board (the “Board”) and DANJAQ, LLC (the “DANJAQ”). That was the first judicial definition of the right, and the first time it was included as a protected “prior right.”

In today’s post, we would like to describe the facts in the case, and introduce to our readers the opinions of Beijing High Court and our comments on the matter.

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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. Even after the company failed todemonstrate that the IP address is used by a third party, and it fulfilled its obligation to check the content of the webpage, the company should still be liable for any corresponding infringement.

Case Summary:

Beijing Ciwen Filming Co., Ltd. (“Company C”) is the copyright holder of film Qi Jian (also known as “Seven Sword”) in mainland China. However, Company C discovered that Hainan Netcom hadbeen providing a link on its homepage (www.hai169.com) for its visitors to stream Qi Jian, without the authorization of Company C.As a result,in September of 2005, Company C filed a lawsuit against Hainan Netcom because it believed that Hainan Netcom had infringed upon its copyright.

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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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Litigation in China: A Long and Rocky Road

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(By Dr. Wenbao Qiao) For foreign companies doing business in China, disputes and litigation may sometimes be inevitable. Once a dispute cannot be resolved out of court, there is a long and rocky road to the final success, with several important points to be considered for the planning and handling of litigation in China: 

Documents and Evidence 

The first step of each procedure is to collect and prepare all necessary documents and evidence. According to Chinese law, documents and evidence from another country (such as excerpts from the commercial register or powers of attorney) have to first be notarized in their country of origin and then certified by the Chinese Embassy or Consulate in the respective country. Only notarized and certified documents and evidence will be accepted by Chinese courts. While preparing the documents and evidence, attention should be paid to the timeline required for notarization and certification. There are several important statutory deadlines shown below. Failure to meet these deadlines can lead to the loss of a case. Notarization and certification in Germany usually takes two to three weeks, which in turn may play a critical role for the scheduling of time in preparation for trial.

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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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