Category Archives: Registration

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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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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Encyclopedia vs Apple: Why AppStore Could Not Ship into Safe Harbor?

By You Yunting

As reported by media, Beijing No.2 Intermediate People’s Court made the first instance decision for infringement claims made by Encyclopedia of China Publishing House (Encyclopedia) agains Apple’s AppStore. With the decision, Apple shall compensate Encyclopedia RMB 520, 000 yuan and immediately cease the infringement. In current, no intention to appeal has been expressed by Apple.

Case: Encyclopedia discovered Apple’s user could purchase and download apps of its copyrighted works, which could be read in iPhone and iPad. With the anger of the infringement, Encyclopedia filed a lawsuit against Apple, who counter-stroke that the actuall operator of AppStore is a company registered in Luxembourg, not Apple. And Apple provided no services in the process of software uploading, and therefore Apple shall be with no engagement in the dispute.

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Han Han Vs Baidu: Safe Harbor Principle in China

By Albert Chen

Han Han, Baidu, Baidu Wenku, apology, Safe Harbor Principle, information storage space, ISP, Internet Service Provider, prior examination, delete infringing contents, delete classification, quick channel, DNA comparison technology, prevent and stop the infringement, Baidu claim, more rigorous due diligence duty, bona fide and no misfeasance,

By news reports, Beijing Haidian People’s Court judged the copyright infringements filed by Han Han and other Chinese writers against Baidu (NASDAQ: BIDU) Wenku, an online document sharing port, in recent. Among all the 14 lawsuits, 7 are supported the claims of compensation as $ 400 for each work involved, yet refuse the claims of shut-down the port and apology. As to the rest 7 lawsuits, Baidu gain an overwhelming victory.

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How to Legally Use Mickey Mouse Brand and FIgure in China?

By You Yunting

About one month before, the IPR Committee of Shanghai Bar Association invited the police officer from the Economic Investigating Squadron of Shanghai Police Department to deliver a speech on the criminal protection over IPR issues. And in the communication after the seminar, the police officer raised a question to the acceded lawyers, “The Shanghai Disney Land will be constructed several years later, and it’s foreseeable that there could be stores selling Mickey Mouse or other figures articles with no license thereby granted around the park. Yet, by then, the copyright protection term on Mickey could be expired, and so what measures could be taken to strike the unlicensed using or selling?”

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Does BesTV Infringe CNTV for Broadcasting Olympic Games?

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By You Yunting

In recent, CNTV, the subsidiary of China national television station (the “CCTV”), which in charge of its online business, quarreled with SMG’s BesTV (SHEX:600637) on the Olympics broadcasting. By the statement of CNTV, it owns the exclusive online broadcasting right of 2012 London Olympics in China, yet BesTV, with no license form CNTV, provided 1) the streaming of Olympic games, 2) program time-shifted playback through server storage and 3) VOD to local cooperated IPTVs, and that damages CNTV’s legal rights. So far we have heard no reply from BesTV on the accusation.

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A Way for Companies to Agree on Copyright Belonging with Employees in China

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By Luo Yanjie

In real life, a large number of outstanding copyright works are created during people’s work. Outstanding works will undoubtedly bring great benefits to right people which lead to disputes. For example, Hu Jinqing and Wu Yun, The father of Calabash Brothers, sued Shanghai animation film studio years ago, who were asked to confirm whether the copyright of characters in “Calabash Brothers” belonged to them, which the studio said the art character’s copyright belongs to the studio (note: the link is in Chinese).

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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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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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Analysis on Taxation in Copyright Contribution in China

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By Luo Yanjie

China corporate lawyer, China company establishment, company establishment tax administration, company establishment tax avoidance, non-monetary investment taxation issues, non-monetary investment tax avoidance, copyright contribution tax issue, copyright contribution tax avoidance, corporate law, company establishment, company establishment legal issues, company capital adequacy duty, value-added assessment, original value assessment, company income tax, business tax, personal tax, turnover tax, asset evaluation, non-monetary contribution.

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Brief Introduction to Software Copyrighter’ s Right Limitation to Ultimate User

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by Luo Yanjie

Under the system of China Copyright Law, what right limitations may come to software owners? And what rights and obligations are enjoyed or taken by the ultimate user and what’s the liability when the infringement occurs? Today we would like to give you the introduction on the issues. There are two main litigations on the PC software, namely the Copyright Law and the Regulations on the Protection of PC Software (the “Regulation”). But according to the latest exposure of the Copyright Law’s revision, the Regulation’s articles have been all regulated in the new drafted law; therefore, it is foreseeable that the Regulation may be abolished once there publicized the new Copyright Law.

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What Change on Information Communication by Network in Exposure Draft of China Copyright Law? II

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By Luo Yanjie

II. To enlarge the information networks: a concept coincidence with the right to transmission

Besides the enlargement to the definition of the right to the information communication by networks in the exposure draft, the new judicial interpretation also regulates a wider definition on the information networks, which includes PC internet, radio & television networks and mobile telecommunication networks. We support such enlargements for radio and television VOD is feasible with the technology development while the networks of them are excluded from the legal information networks. Since the nature of VOD on radio & television networks is of no difference from that on the internet, the information communication by networks shall naturally involve it.

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