January 2024
Di Wu and Teresa Huang
In recent years, the number of copyright infringement cases has been continuously increasing, such as art infringement, photography infringement, literary infringement, and so on. Regarding whether the accused infringing work constitutes copyright infringement, general practical and theoretical opinions tend to judge based on the following four points: 1. Whether the work claimed by the plaintiff belongs to the works protected by the Copyright Law; 2. Whether the plaintiff has a legal basis for the claimed works; 3. Whether the accused infringing work meets the criteria of “contact plus substantial similarity”; 4. Whether the defendant’s defense complies with the fair use allowed by law.
This article briefly discusses the recognition and judgment standards of copyright infringement based on the above four points.
I. Does the plaintiff’s claimed work belong to works protected by the Copyright Law
In determining copyright infringement, there is a prerequisite that the work belongs to the protection of the Copyright Law. Regarding how to determine the scope of protected works in the Copyright Law, please refer to our previous related articles: Series of Articles on Copyright Protection (1) ─ Works Within the Meaning of the Copyright Law (Mainland China).
II. Does the plaintiff have a legal basis for the claimed work
Firstly, the plaintiff needs to prove that he/she has rights to the work. According to the provisions of the Copyright Law and relevant practical opinions, the main subjects of prosecution for copyright infringement cases include copyright owners, owner of neighboring rights, interested parties, and collective management organizations for copyright. There are mainly two types of interested parties, one is the heir of the copyright owner, and the other is the licensee. However, not all licensees have the right to file a lawsuit. According to the relevant provisions of the Implementation Regulations of the Copyright Law, due to differences in the scope and authority of licensing, the licensee can be divided into proprietary licensing rights and non-exclusive licensing rights. If there is no clear agreement in the license contract, the general difference is as follows: (1) proprietary Exclusive license refers to the copyright owner fully authorizing the licensee to use it, and the copyright owner has no right to use it themselves. The exclusive licensor has the right to file a separate lawsuit for copyright infringement. Sole license rights means that although the copyright owner authorizes the licensee to use it, the copyright owner can still use it himself. The sole licensor may file a lawsuit together with the copyright owner, or file a separate lawsuit for copyright infringement when the copyright owner clearly does not file a lawsuit; (2) Non-exclusive license, also known as ordinary license, can be used by the copyright owner themselves and authorized to be used by multiple parties. Ordinary licensors have the qualification to sue only when the copyright owner explicitly authorizes them to do so.
Secondly, the plaintiff needs to prove that they are the copyright owner of the claimed work or the person who has the right to file a copyright infringement case. According to Article 7, Paragraph 1 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes over Copyright, the workpapers, original documents, legal publications, copyright registration certificates, certificates issued by certification agencies, and contracts for obtaining rights provided by the parties involved in copyright can be used as evidence. According to the above legal provisions, if the plaintiff can provide the above-mentioned supporting documents related to copyright, the court can determine that the plaintiff has the copyright of the work in the absence of evidence to the contrary provided by the defendant.
III. Whether the accused infringing work meets the requirements of contact and substantive similarity
Contact is one of the constituent elements of copyright infringement. In judicial practice, it is generally assumed by the court based on the evidence submitted by both parties whether the defendant has the possibility of coming into contact with copyrighted works. The determination of contact can be divided into two situations based on whether the copyrighted work has been publicly published: (1) If the prior copyright owner only needs to provide evidence to prove that the copyright owner’s work has entered the relevant public domain before the completion of the disputed work, or if the other party can access the copyright owner’s work through other means, in the absence of evidence to the contrary, it can be inferred that the other party has the possibility of contact. (2) If the copyrighted work has not been publicly published, evidence is required to prove that the accused infringer has actually come into contact with the copyrighted work.
Substantive similarity is also an important condition for determining infringement. The substantive requirement for determining copyright infringement should be to judge the degree of similarity in specific expression between the copyrighted work and the accused infringing work. Because the Copyright Law protects the external expression of a work, in judicial practice, courts generally compare the similarity of the content of a work to ultimately determine whether it constitutes infringement.
Taking the copyright ownership and infringement dispute retrial case of Pan Longjiang and Zhang Yongqing (case number: (2020) Supreme Court Civil Shen No. 4712) as an example, on November 16, 2010, December 13, 2010, and November 22, 2010, Zhang Yongqing uploaded the song “I Really Want to Hold Your Hand” to multiple websites in China, including the original music base “5SING”, “Zhang Yongqing China Performance Network Blog”, and “Sina Blog”; On May 31, 2011, Pan Longjiang applied for work registration for “Red Dust Love Song” without the permission of Zhang Yongqing. Zhang Yongqing believes that “Red Dust Love Song” is suspected of plagiarism from “I Really Want to Hold Your Hand”, so he filed a lawsuit in court. The court believes that firstly, based on the above chronological order, it can be inferred that Zhang Yongqing published the song “I Really Want to Hold Your Hand” on the internet on November 16, 2010, earlier than the time when Pan Longjiang applied for the registration of the work “Red Dust Love Song”. Therefore, it should be considered that Pan Longjiang has the possibility of encountering Zhang Yongqing’s work, that is, “I Really Want to Hold Your Hand”, which meets the requirements for contact. Secondly, according to the Yin Zhu Xie Zi [2018] No. 0020 “Reply” and “Appraisal Opinion” submitted by Zhang Yongqing, it can be proven that the sheet music of “Red Dust Love Song” and “I Really Want to Hold Your Hand” constitute substantial similarities, meeting the requirements of substantial similarity. In summary, Pan Longjiang’s application for work registration of “Red Dust Love Song” meets these two major requirements and can be deemed as copyright infringement.
IV. Is the defendant’s defense a fair use
In judicial practice, if the defendant argues that the accused infringing work constitutes fair use, and the court determines that it constitutes fair use, the defendant is not liable and does not need to pay any compensation. The so-called fair use refers to the situation where others can directly use a work without the permission of the copyright owner or payment of remuneration to the copyright owner after meeting certain requirements. However, the name or title of the author and the name of the work should be specified, and it should not affect the normal use of the work, nor unreasonably damage the legitimate rights and interests of the copyright owner. Article 24 of the Copyright Law stipulates 13 types of “fair use”. This article selects several common situations for discussion, as follows:
A. Personal use. Personal use refers to the use of published works by others for personal learning, research, or appreciation. The main difference between personal use and copyright infringement is whether the use is purely for personal purposes. Taking the dispute case between Hei Siying and Beijing Jinjiang Original Network Technology Co., Ltd. over the infringement of work information network dissemination rights (Case No.: (2021) Jing 73 Min Zhong 3618) as an example, on March 2, 2019, Zhu Yiqiu (pen name: Zhu Ji) issued an “Authorization Letter”, granting Jinjiang Company the exclusive information network dissemination rights of “Hidden” and the agency rights of all other intellectual property rights. On October 23, 2019, Jinjiang Company discovered that Hei Siying was playing “Hidden” in the form of an audio novel on the Himalaya app for listeners to listen to. Therefore, they filed a lawsuit with the court, believing that Hei Siying’s unauthorized dissemination of the novel’s audio mode without Jinjiang Company’s consent constituted infringement. The court believes that Hei Siying’s unauthorized use of the work in question allowed the public to obtain the work at a time and place chosen by themselves, infringing on Jinjiang Company’s right to information network dissemination right of the work in question. And Hei Siying’s placement of the involved work on public information network platforms, which allows non-specific public access to the involved work, will unreasonably harm the rights of the copyright owner, clearly exceeding the scope of personal use.
B. Appropriate citation. When creating critical articles or academic works, it is inevitable to introduce or comment on existing viewpoints of other works on a certain matter, or appropriately cite works already published by others. Therefore, China’s Copyright Law stipulates that appropriate citation is not an infringement of copyright, and allows others to introduce, comment on a certain work or explain a certain issue by appropriately citing a work that has already been published by others. In judicial practice, the court will comprehensively consider the purpose of citing the works of others, the proportion of the cited works in the entire work, whether it will affect the normal use of the original work, or whether it will compete with the economic interests of the rights holder, and other factors to determine.
C. Use current affairs articles. Current affairs articles generally refer to objective descriptions, real-time reporting, comments, etc. of news events. The so-called use of current affairs articles refers to news media publishing articles on political, economic, social practices, and other content that have already been published by other media organizations when reporting factual news. In order to facilitate the public’s understanding of the economic, political, and cultural situation of the country and the world, and to protect the right of citizens to participate in political and economic life, China’s Copyright Law regards the use of current affairs articles as fair use, and the above-mentioned publication or citation behavior does not constitute infringement;
D. Classroom teaching and research use. For the needs of classroom teaching or scientific research, educators may cite some papers or research results for auxiliary teaching, and the above behavior can be considered as the fair use of classroom teaching and research;
E. Free performance. Free performance refers to the performance or performance of a work for free, and the performance itself is not for profit. It should be noted that charity performances may not be considered as free performances as described in this article. Although the performance is of a public welfare nature and the performer does not receive any remuneration, it objectively raises funds from the public and may involve collecting some fees. Therefore, charity performances may not be considered as free performances. The works produced during charity performances should obtain permission from the copyright owner, otherwise it will constitute infringement of the copyright of others.
Conclusion
In summary, in the process of determining copyright infringement, the court will use certain methods to determine whether it constitutes infringement. In copyright infringement cases, determining whether a work has originality, substantive similarity, and constitutes fair use is a key and difficult point in determining infringement, and special attention should be paid when handling copyright infringement cases.
The above is a summary of the elements and general process for determining copyright infringement for reference.
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