Defense Strategies of Defendants in Internet Copyright Cases
Author | Intellectual Property Center, Lawyer Wang Qionghua
The common defenses for copyright infringement disputes mainly include the rights foundation defense (originality, scope of application of copyright law, duration of copyright protection, scope of rights, etc.), ownership defense, litigation subject defense, convergence defense (limited expression, necessary scenes, public domain, etc.), legal source defense (independent creation, legal authorization, other prior works, etc.), fair use defense, statutory license defense, etc.
First, the judicial review of online copyright cases
The idea of judicial review of copyright infringement cases is basically the same as the way of review of general infringement disputes, from rights (works), subjects (ownership), behaviors (behaviors) to responsibilities. Specific to copyright dispute cases, first of all, it is necessary to confirm whether the subject matter involved in the case constitutes a work in the sense of copyright law and whether it can be protected by copyright law. Second, it is necessary to confirm the ownership of rights, that is, whether the plaintiff enjoys copyright to the work involved and what specific rights are enjoyed.
According to the provisions of Article 10 of the Copyright Law, copyright is divided into 17 "exclusive rights". Coupled with the transfer and licensing of rights, there may be a plurality of rights subjects. Therefore, it is necessary to clarify the specific copyright content claimed by the plaintiff in order to clarify the subject of the rights of the content. Third, it is necessary to conduct an infringement comparison based on the principle of "possibility of contact" and "substantial similarity" to check whether the accused behavior constitutes infringement. Fourth, it is necessary to check whether the defense reasons raised by the defendant are established, whether there are defenses that do not constitute infringement or defenses that constitute infringement but are exempt from liability, such as fair use, legal sources Safe haven rule defense, etc. Finally, it is the issue of specific tort liability.
Among them, the more common disputes focus on the determination of the originality of the work, the application of the principle of "contact possibility" and "substantial similarity" in the infringement comparison, the legal source, and the defense of the safe haven rule.
In online copyright infringement disputes, the defendant can usually defend from (1) the basis of rights - originality, scope of application of copyright law (2) ownership defense - qualification of litigation subject (3) infringement comparison - whether it constitutes infringement (4) exemption - whether it needs to bear legal liability (5) the amount of compensation.
In general, the common defenses raised by defendants typically include the following:
(1) The object of the plaintiff's claim does not belong to the work stipulated in Article 3 of the Copyright Law.
(2) The object of the plaintiff's claim falls within the circumstances stipulated in Article 5 of the Copyright Law.
(3) The rights claimed by the plaintiff exceed the legal term of protection.
(4) the plaintiff or the defendant is unqualified;
(5) The alleged infringement does not fall within the scope of the plaintiff's claimed rights.
(6) The alleged infringing work has a legitimate source of creation;
(7) The defendant has legal authorization to use the plaintiff's work.
(8) Where the alleged infringement is a fair use or a statutory license;
(9) Other circumstances.
II. Key Points and Difficulties of the Right Foundation Defense
1. Is it a work within the meaning of copyright law?
The defense of rights basis generally refers to the defense from the perspective of originality, scope of application of copyright law, duration of copyright protection, scope of rights, etc. For example, whether the plaintiff claims to protect a work in the sense of copyright law, and whether the object of protection is the object of protection of our country's copyright law. Take two cases to illustrate.
In the case of Ma Qi's application for retrial with the Leshan Municipal Culture, Radio, Film and Television Press and Publication Bureau and Tang Changshou's copyright ownership dispute, the Supreme People's Court held that: "Whether the object claimed by the parties to be protected (" Investigation Report on Hanging Coffins in Leshan District, Sichuan Province ") constitutes a work within the meaning of the Copyright Law is an issue that the court must first review when hearing such cases." The court analyzed and held that "the expression form of the work should be independently completed by the author and different from the expression form of the previous works existing in the public domain and those of others... Because it is an objective description of the facts such as the name, age, shape, quantity, and size of the cultural object, it is subject to the above basic facts. Due to the limitations of objective and accurate requirements, its text selection is limited, its expression is relatively fixed, and it is not original.
The first-instance and second-instance judgments determined that it did not constitute a work in accordance with the relevant provisions of the Implementing Regulations of the Copyright Law, rejected the claim, determined that the facts and applicable laws were not improper, and rejected the retrial request. This shows that in judicial review, confirming whether the subject matter of the case constitutes a work in the sense of the Copyright Law is the first issue for the court to review. When we represented the defendant in answering the lawsuit, it was also the first point of concern.
The case of Sina v. ifeng.*****nd LeTV for copyright infringement and unfair competition disputes is known as the first case of copyright disputes in domestic sports event online live broadcast, and it is one of the top ten cases of judicial protection of intellectual property rights in ******* courts in 2020. The core dispute in this case is whether sports event programs constitute film works protected by the current Copyright Law and whether they are protected by the Copyright Law.
The court of first instance held that, although there is no standard for originality in law, it should be considered that the selection and arrangement of the recording footage of the event to form a new picture for viewing is undoubtedly a creative labor, and the creativity from different choices and different productions will produce different picture effects that reflect its originality.
That is, the picture formed by the recording of the event constitutes the requirement of the originality of the work in our country's copyright law and should be identified as a work. From the picture presented by the broadcast of the event involved, the creativity of the above analysis is satisfied, that is, through the method of filming and production, the picture is formed, and the visual perception and effect are given to people in the form of audio-visual, which constitutes a work and is determined to constitute infringement.
The second-instance Court held that, first of all, the court has no right to create a type of work. Article 3 of the Copyright Law enumerates the types of works. Although item (9) of this article stipulates that there are "other works", because the "other works" in this provision need to comply with the premise of "laws and administrative regulations", and the "Interpretation of the Copyright Law of the People's Republic of China" written by the relevant legislators also clearly states that "whether other works can be regarded as copyrights must be stipulated by laws and administrative regulations, not by other normative documents, so as to ensure the unity of the law." Therefore, the court in Article 3 of the Copyright Law In addition to the prescribed legal types of works, there is no right to set other types of works.
Secondly, the appellee claimed that the continuous picture carried by the public signal of the event involved constituted a film work. Based on this, the discussion and analysis of the judgment was based on the film work. That is to say, after the subject matter of the case could not constitute a film work claimed by the right holder, the judge did not identify it as a video work, that is to say, if it did not constitute the type of work claimed by the right holder, no other determination was made according to his authority.
Thirdly, the continuous picture carried by the public signal of the event is usually difficult to meet the requirements of the originality height of the film work due to several objective factors, and for the continuous picture of the event involved, the appellant failed to reasonably explain that it was not limited by the above objective factors, or there are other situations with high originality, so the continuous picture carried by the public signal of the two events involved did not reach the originality height required by the film work.
In summary, the continuous pictures carried by the public signals of the two events involved did not meet the fixed requirements of film works, nor did they reach the height of originality of film works, so the continuous pictures carried by the public signals of the events involved did not constitute film works. The pictures of the events broadcast in the final case of the second-instance Court did not have a high degree of originality, did not meet the high requirements of originality of film works, and did not constitute film works - which cannot be determined to be copyrighted - are not protected by copyright law.
The determination made by the second-instance Court is still quite solid, and the discussion is very sufficient, not only the interpretation of the legislative participants, but also the origin of the Berne Convention, mainly the Convention stipulates that "in fact the main categories of works are listed." Of course, "the Convention allows member states to go beyond this scope and treat other products in the field of literature, science and art as protected works." The implication is that after the copyright law of our country has clearly stipulated the relevant types of works, the unspecified parts should not be protected as works.
Combining the legislative purpose of the Copyright Law, the retrial court used the methods of textual interpretation and systematic interpretation to conduct an in-depth analysis of the two major controversies in the copyright protection of sports events - the determination of "originality" and "filming on a certain medium", and clearly pointed out that the substantive difference between film works and video products lies in whether the producer of the continuous picture has created it, and whether the continuous picture formed is original. The division standard of the two should be the existence of originality, not the degree of originality; the definition of film works should be interpreted broadly as "filming on a certain medium".
The continuous pictures carried by the public signals of sports events constitute film works.
In judicial review, confirming whether the subject matter of the case constitutes a work in the sense of copyright law and whether it is the object of copyright law protection is the first issue for the court to review and the prerequisite for the trial of copyright cases.
2. Whether to express or behave
In the case of Zheng Weijiang v. Wu Guanzhong's copyright dispute, Zheng Weijiang claimed that he created art works such as "The Mountain in the Day..." and "Untitled" series in 2001, which were published on the Internet one after another in February 2006. Zheng Weijiang called these works an "original model text painting". In the winter of 2001, he mailed more than 20 photos of Wu Guanzhong's works, including such "original model text painting" works, to Wu Guanzhong for advice, but did not receive a reply.
Wu Guanzhong argued that Zheng Weijiang said that the two works were completely consistent in terms of concepts and methods, but the concepts and methods were not within the scope of copyright law protection; Zheng Weijiang claimed that he created "model text paintings", but in fact "text painting" has existed since ancient times; Wu Guanzhong did not receive more than 20 photos of works mailed by Zheng Weijiang.
The court held that our country's copyright law should protect the expression of thoughts or feelings. In this case, Zheng Weijiang argued that Wu Guanzhong's works and his works are completely consistent in concept, style and technique. The creative concept and technique of "text into painting" has existed since ancient times, and both Chinese and Western artists have used this concept to create.
And concepts, styles and techniques, as the connotations to be reflected in works of art, belong to the abstract subjective category, which is not within the scope of copyright law protection and does not constitute the object of copyright law protection. Therefore, Zheng Weijiang's lawsuit on the grounds that Wu Guanzhong's works and his works are consistent in concepts, styles and techniques does not belong to the scope of intellectual property cases accepted by the people's court and should be rejected.
What the copyright law protects is not the theme, thought, emotion and scientific principles embodied in the work, but the author's expression or expression of these themes, thoughts, emotions or scientific principles. As far as works of art are concerned, the scope of protection under the copyright law cannot be extended to any ideas or creative concepts.
III. Entry Points for Ownership Defenses
Ownership defense can be defended from several aspects such as the review of rights attribution, the review of authorization documents, multiple licenses, and the judgment of transfer ownership.
The copyright of a work does not need to be obtained through administrative approval like patents and trademarks, but is obtained automatically. Copyright registration in our country is also a voluntary registration system/principle. The principle of presumption is adopted for the determination of copyright ownership. Paragraph 1 of Article 12 of the Copyright Law stipulates that "the natural person, legal person or unincorporated organization that signs the work is the author, and there are corresponding rights in the work, unless there is proof to the contrary.
Paragraph 2 of Article 7 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 also stipulates the same: "The natural person, legal person or unincorporated organization that signs the work or product shall be regarded as the owner of the copyright and the rights and interests related to the copyright, unless there is proof to the contrary.
"Article 3.1 of the Guidelines for the Trial of Copyright Infringement Cases of the Beijing Higher People's Court stipulates that in the absence of evidence to the contrary, the attribution of rights shall be presumed based on the authorship of the work.
The manuscripts, originals, legal publications, copyright registration certificates, certificates of certification bodies, contracts for obtaining rights, and statements of rights holders in line with industry practices provided by the parties concerned can be used as prima facie evidence to prove the ownership of rights.
Then, if the defendant believes that the ownership is convenient to defend, he can also use the above-mentioned evidence as evidence to the contrary.
IV. Infringement comparison and determination rules
To determine whether a work constitutes infringement, it is necessary to compare the ownership work with the infringing work. The same or substantially similar constitutes infringement. In infringement comparison, commonly used determination rules include the following:
1. Similarity determination: The court will compare the similarity between the work used by the defendant and the plaintiff's work. The similarity determination involves comparing the overall structure, theme, expression, creative style, etc. of the work. If the work used by the defendant and the plaintiff's work are substantially similar in the above aspects, it may constitute infringement.
2. Significant part determination: The court will compare whether the work used by the defendant is the same or similar to an important part of the plaintiff's work. If the work used by the defendant reproduces an important part of the plaintiff's work, it may constitute infringement. Significant part determination involves comparing the core elements, key plot, unique creativity, etc. of the work.
For example, in the Taobao Software China v. Shenzhen Aidou Copyright Infringement Series case handled by the author, the works involved in the case were 101 MV works of South Korean SM Entertainment Company, and the plaintiff Taobao (China) Software Co., Ltd. was entrusted to conduct safeguarding rights via litigation in China. Shenzhen Aidou Company was sued twice for infringement compensation.
During the trial of the first lawsuit, the argument was found through infringement comparison and the defense was successful. The plaintiff could not provide the works of ownership for comparison, some works were not signed, and the name of the MV works was wrong, so the plaintiff's claim amount was forced to be reduced from 3.03 million to 690,0
00and was forced to withdraw the lawsuit.
Review of the grounds for exoneration
The basic meaning of the "safe harbor rule": For network service providers to use information positioning tools, including directories, indexes, hypertext links, and online storage websites, if the relevant content they link and store is suspected of infringement, if they can prove that they are not malicious and delete the infringing link or content in a timely manner, they will not be liable for compensation. Therefore, the "safe harbor rule" is also known as the "notice + delete" rule.
The "safe harbor rule" is mainly applied to the field of Internet infringement, and the applicable object is the network service provider, that is, when the network service provider receives a notice from the right holder about the existence of infringing content or infringing information on the network service platform, it must take reasonable measures, otherwise it will be jointly and severally liable with the provider or uploader of the infringing content (the actual infringer). If reasonable measures are taken, there is no need to bear responsibility.
(1) Legal provisions on safe haven rules
The more complete and detailed provisions of the "safe harbor rules" are mainly in our country's "Regulations on the Protection of the Right to Disseminate Information Networks", and its Articles 14 to 17 specify the complete operation process of "notice-deletion-counter-notice-restoration" in great detail, providing a specific and clear basis for judging whether the platform meets the requirements of the "safe harbor rules" in judicial practice.
Articles 20 to 23 of the Regulations on the Protection of the Right to Disseminate Information on Networks stipulate the circumstances under which network service providers can be exempted from liability. If the behavior of network service providers meets the conditions listed in the above articles, they will not be liable for compensation. In addition, the Civil Code has also made more detailed and complete provisions, and further improved and upgraded the safe harbor principle.
The Civil Code stipulates the safe harbor principle in Articles 1195 (Notification Clause for Infringed Persons) and 1196 (Counter-Notification) respectively. The provisions on intellectual property rights and "safe harbor rules" of the Electronic Commerce Law, which came into effect on January 1, 2019, are concentrated in Articles
41to 45.
(Ii) Exceptions to the safe haven rule
1. Duplicate infringer policy
Failure to properly set up and enforce a repeat infringer policy will not qualify for safe haven protection, known as a "repeat infringer policy". The basic elements include setting up an infringement policy to terminate access to the services of repeat copyright infringers where appropriate; informing users of the infringement handling procedure policy; and effectively implementing the policy in a reasonable manner.
For example, in the case of Beijing Qiyi Century Technology Co., Ltd. and Shanghai Huandian Information Technology Co., Ltd. infringing on the right of information network dissemination of works [ (2015) Pu Minsan (Zhi) Chuzi No. 793], although the defendant argued that the works involved in the case should be exempted by the safe harbor rules for user uploads, the court noted that in the background records provided by the defendant, for the users who uploaded the above-mentioned six videos, the defendant used a large font to win the bidding in the author status bar.
"It can be seen that the defendant may and has the ability to prevent the playback of these videos on its mobile client, but the defendant did not take any measures to prevent or avoid the infringement, thus helping to expand the consequences of the infringement of the works involved. Therefore, the court did not accept the defendant's defense and did not exempt the act of providing storage space services.
2. red flags rule
If the infringement is as clear and dazzling as a bright red flag, but the ISP turns a blind eye, it should bear the infringement liability. For example, in the copyright infringement dispute between Han Han and Beijing Baidu Netcom Technology Co., Ltd., the court held that whether Baidu knew the existence of the work in question should be considered in combination with the objective status quo of Baidu Wenku, the popularity of the work in question, the dispute between Han Han and Baidu over Baidu Wenku, and Baidu's ability to foresee and control the infringement.
After considering the above factors, the court held that Han Han, as a well-known contemporary writer, had negotiated with Baidu on the infringement of Baidu Wenku. Baidu knew that Han Han did not agree with Baidu Wenku to disseminate his works, and also knew that there were documents infringing Han Han's copyright on its online platform, so it should have a higher duty of care.
In addition, Baidu promised to use manual review to clean up infringing documents. Since Han Han had negotiated with Baidu for the same work, Baidu should have a higher duty of care during the review process. Baidu claims that it has taken corresponding measures to stop the dissemination of infringing documents, but the effect is not good due to imperfect technology.
The court held that the situation that some infringing acts could not be discovered in time due to the defects of the technical measures themselves was objective and unavoidable, but Baidu clearly knew that there were infringing works on the platform, but still pinned the main anti-piracy work on the consciousness of netizens and imperfect technical measures.
VI. Key points of the defense of the amount of compensation
The defense of the amount of compensation is a defense strategy commonly used by defendants in online copyright cases. By objecting to the amount of compensation demanded by the plaintiff, they argue that the amount of compensation is too high or unreasonable. The main points of the defense of the amount of compensation include the following aspects:
1. Calculation of loss: Defendants may argue that the amount of compensation sought by the plaintiff does not correspond to the method of calculating actual loss. For example, a defendant may argue that the economic loss suffered by the plaintiff was not due to the defendant's tort, or that the plaintiff was unable to provide sufficient evidence to support its calculation of economic loss.
2. Assessment of Reasonableness: The defendant may argue that the amount of compensation requested by the plaintiff is legally unreasonable. For example, the defendant may argue that the amount of compensation requested by the plaintiff is too high, exceeding the actual loss caused by the infringement and the defendant's financial capacity.
3. Types of works. Different types of works correspond to different compensation standards. For example, the "Guidelines of the Higher People's Court of Guangdong Province on Several Issues in the Trial of Disputes over Copyright Infringement of Film, Television and Music Works" vary widely in compensation standards for different types.
Lawyer Profile
Wang Qionghua, Lawyer
, Partner Lawyer
Secretary General, Copyright Law Professional Committee of Shenzhen Law Association
Secretary General of Zhiheng Intellectual Property Center, Deputy Director of Copyright Committee
Areas of expertise:
Intellectual property (criminal-civil cross), corporate compliance
Corporate legal counsel, civil and commercial dispute resolution
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"Evaluation on Typical Cases of People's Mediation in Futian District, Shenzhen"
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