News and Cases from China: July 2018
Beijing Intellectual Property Court extends Copyright Protection to Musical Fountain
In 2016, Beijing Water Design Technology Co., Ltd. (Beijing Water Design), a company well-known for its musical fountains, combining water, music, and lighting effects, brought copyright infringement proceedings against Beijing CSCA Technology Co. Ltd (CSCA) and the Lake Department of the Hangzhou Administration Commission of West Lake Scenic Area. The central question in the case was whether Beijing Water Design’s musical fountain constitutes a work capable of protection.
At first instance, the Beijing Haidian District People’s Court held that it does. Although it does not fit neatly into the categories of copyright work, it is an original work, capable of being reproduced. As such it should be protected. It found that CSCA’s fountain was substantially similar to one previously created by Beijing Water Design and that Beijing Water Design’s copyright had been infringed. The Court ordered the Defendants to cease the infringement, publicly apologize, and pay damages and costs in the sum of RMB 90,000 (approx. US$ 13,470). The Defendant appealed to the Beijing Intellectual Property Court.
The Beijing Intellectual Property Court upheld the decision at first instance. It found that the Plaintiff’s musical fountain constituted an original work that was made up of a variety of programmed elements, including water movement, light, colour and music, and capable of being reproduced. Thus, it qualified for copyright protection.
The two Defendants had, without permission, reproduced the Plaintiff’s work and infringed copyright. Because the Defendants‘ use of the fountain was commercial in nature, the fair use provisions did not apply.
China SwordNet Action 2018 Fight Against Copyright Infringement
On 16 July, the National Copyright Administration of China and the National Network Information Office, the Ministry of Industry and Information Technology, and the Ministry of Public Security jointly announced the launch of China’s 2018 Sword Net Action. Sword Net Action is an annual campaign against online piracy. This year, from July to November, it is focusing on copyright infringement and piracy in the areas of the online reproduction of printed works, short videos, and other key areas including animation and audiobooks.
In relation to the reproduction of printed material, steps will be taken to combat the unauthorized reprinting, extraction, distortion and falsification of materials on news websites, Weibo accounts, and WeChat public accounts.
Action in relation to short videos will include consideration of short video Apps such as Tik tok (Douyin.com) and Kuaishou.com. On the one hand, the action aims to combat all kinds of infringement in relation to short videos; on the other, it provides guidance to short video platform enterprises in relation to copyright authorization and broadcast rules.
In relation to other key areas, the action concentrates generally on the prevention of unauthorized use of works on the relevant platforms.
Court accepts evidence collected via Blockchain Technology
On 28 June, the Hangzhou Internet Court confirmed for the first time that electronic evidence secured via blockchain technology is legally effective. The decision was made in the context of an action for copyright infringement
In this case, in order to prove that the Defendant had published the copyright works on its website, the Plaintiff, Huatai Media Culture Media Co., Ltd. (Huatai), relied on a third-party evidence preservation website,Baoquan.com, that uses blockchain technology.
The Court held that the source of the evidence was reliable and authentic and that the Defendant had infringed copyright.
Shanghai Intellectual Property Court awards RMB 15.05 million (approx. USD 2.2 million) in Software Copyright Infringement action
Dassault Systèmes Co., Ltd (Dassault), a French company, brought copyright infringement proceedings against Shanghai Tongjie Technology Co., Ltd. (Tongjie) in relation to the unauthorised reproduction of its CATIA series software. The Shanghai Intellectual Property Court held that Tongjie had infringed and ordered it to stop; however, determination of the amount of compensation became a major issue.
The Court ordered Tonglie to pay compensation for economic loss and reasonable expenses in the sum of RMB 15.05 million (approx. US$2.2 million). This is the second time the Courts have recently made a large damages award in a software infringement case. In June, damages of RMB 9 million (approx. US$ 1.3 million) were awarded,
When finalizing the amount of compensation, the Court stated that the following factors had been considered: First, the extent of the infringement. On 11 May 2017, the executive judge visited Tongjie’s premises and found that 16 of the 18 computers examined had the CATIA series software installed. On that basis, it could be inferred that 160 of the 180 computers owned by Tongjie would have the copyrighted software installed. Secondly, Tongjie had not paid any fees for using CATIA software since 2006. According to the evidence provided by Dassault, and accepted by the Court, the price of CATIA software was about RMB 200,000 (approx. US$ 29,200), whereas Tongjie had claimed that the price of CATIA was about RMB 100,000 (approx. USD 14600).