(By Luo Yanjie) Abstract: The Implementing Regulations of the Copyright law stipulates “works” under the protection of the Copyright Law shall be under originality. “Originality” can be divided into two parts: independent creation and the minimum intellectual creation.
An enterprise filed a suit to the courts, alleging the defendant copied its contractual terms. One would wonder whether the terms of a contract shall be protected by the Copyright Law. The Guangzhou Intermediate People’s Court provided an answer that the terms in a contract may not be protected by the Copyright Law owing to the expression limitation of a contract. Here are the introduction to this case and our opinions for the following.
Introduction to the Case：
On February 23, 2011, Guangzhou Panyu Communication Investment and Construction Co., Ltd (the “PYJT”) concluded a Bid Invitation Agency Agreement for Construction Projects with Guangdong Overseas Construction Supervision Co., Ltd (the “GDHWJL”) and later published its third part Special Terms and Conditions on the Internet. It is publication of the third part that generates discontent of Guangzhou Wanwei Engineering Consultancy Co., Ltd (the “Wanwei Engineering”). Wanwei Engineering brought a lawsuit to the court, alleging that PYJT’s use of the Special Terms and Conditions without the permission of the Wanwei Engineering who created it constituted copyright infringement.
Nansha District People’s Court of Guangzhou City of the first instance held for the following: Firstly, Wanwei Engineering combined with some potential problems that may encounter in the construction and developed new contractual terms within its targeted reselection, edition, revision and improvement. Then such new contractual terms wholly indicated its independent creation thoughts and structural arrangement, and thus constituted a new works, differentiating from other preceding similar works. Therefore, the court of first instance decided that the defendant PYJT was constituted infringement. Dissatisfied with this judgment, the defendant PYJT appealed.
Guangzhou Higher People’s Court of second instance held that, considering the use of such contractual terms provided by Wanwei Engineering, such contractual terms were played the role of utility functions for the purpose of solving legal problems in the economic life of a construction. Such contractual terms was designated to include some universal provisions in the view of different situations and implemented some utility functions after additions, deletions and revision by relevant personnel according to the actual conditions. The court of second instance held that the terms of a contract had a limited expression and an accurate and optimized expression is more limited. Therefore, the court of second instance modified the judgment of the first instance and determined the defendant of non-infringement, deciding the contractual terms not to constitute a work as regulated in the Copyright Law.
Lawyers’ Comment:
Pursuant to the Implementing Regulations of the Copyright Law, works under protection of the Copyright Law shall be originality. For this, we combined this case and made an analysis as follows:
1. What refers to the “independent creation”?
“Independent creation” stems from oneself who creates works independently. Even though it is similar to each other coincidentally, it may also get protection from the Copyright Law under the circumstance that this similarity makes sense. For example, for a same scenery, two painters may draw two very similar pictures to each other and those two similar pictures constitute two independent works. In this case, the third party Specific terms and conditions were created by Wanwei Engineering that shall conform to the meaning of “independent creation”.
2. What refers to “the minimum intellectual creation”?
The minimum intellectual creation also embodies the original legislative intention of the Copyright Law, i.e., the protecting object of the Copyright Law is the intellectual creation that shall demand the minimum sense of aesthetics except for the creation. For example, collecting telephone numbers would be a hard work but such collecting actions itself does not include intellectual works, therefore, its result of collecting telephone numbers cannot obtain protection from the Copyright Law.
3. The contractual terms do not meet the requirement of the “minimum intellectual creation” in accordance with the Copyright Law.
In this case, the contract is functional and serves mainly to solve the legal problems in the economic life, and the contractual terms are some generalized words according to different situations. The contractual terms themselves are made pursuant to the Contract Law, other laws and some relevant regulations in order to define each other’s rights and obligations. Under similar circumstances, considering the simplicity of legal language, the expression methods are limited. In other words, the contractual terms do not have neither the “minimum intellectual creation” primarily nor the minimum sense of aesthetics. Therefore, the judgment contained by the court of second instance that the contractual terms do not conform to the works as regulated in the Copyright Law meets the requirements of the stipulations and original legislative intention of the Copyright Law.
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