I

1.The Copyright Law of China protects expression without extending to the protection of thoughts, where the protection of works is the protection of expressions with original creation, including sufficiently specific character settings and character relationships, plot events, plot development strings, interaction between characters and plots, contradictions, etc.

2.The determination of infringement of literary works’ copyright can follow the principal of “contact and substantial similarity”, where the character setting and character relationship, the plot, and the strings of plots can be used as factors to judge substantial similarity.

3.Except for special provisions of the law on the exercise of the copyright of an adapted work or any use of the adapted work, the consent of the adaptor and the copyright owner of the original work shall be obtained, otherwise not only the copyright of the adapted work, but also the copyright of the original work will be infringed.

Case: Q wrote the script M in 1992, and adapted it into a novel of the same name in 1993 and released it to the public.The TV series M based on this script was first broadcast in Taiwan, China in 1993.In 1994, this series was broadcast in mainland China.Yu completed the script G in 2012 and first published it in 2014.The TV series G was shot according to the script G.Yu is the screenwriter and the four companies A, B, C and D are the producers of the TV series.Q believes that the script and TV series of G and his work M are highly similar in character settings, character relationships, and plots; he believes Yu and A, B, C and D have jointly infringed his copyrights.((2014) San Zhong Min Chu Zi No.07916)

The court held that: (1) Q’s novel and script shall be protected by Copyright Law.Literary works such as novels and plays are works in the sense of Copyright Law, and works as well as expressions elements of works are protected by Copyright Law.The Copyright Law protects expression but does not extend to thoughts, and the expression elements of works including sufficiently specific character settings, character relationships,plot events, plot development strings, character-plot interactions,contradictions, etc., which are usually integrated into the author’s original and intelligent creation and condense the most brilliant original expression of the entire work, shall therefore be protected by Copyright Law.

(2) The script G infringed the right of adaptation of the plaintiff’s work involved in the case.The determination of copyright infringement by the Copyright Law usually follows the principal of “contact + substantial similarity”.(a) Contact.In this case, the public broadcast of the TV series M can achieve the effect of publication of the content of the script M, so the public broadcast of the TV series M can be presumed to be the public release of the script M.Since the defendants have access to the TV series M, it is presumed that they may have access to the script M.(b) Substantial similarity.Yu substantively used the character settings and character relationships, plots, and plot strings of the plaintiff’s work as a whole,which have high originality, to form a new work, namely the script G.The above behavior transcended the boundary of reasonable reference and constituted an adaptation of the plaintiff’s work involved,and infringed the plaintiff’s right of adaption.(https://www.daowen.com)

(3) The TV series G has infringed on the right of production of the plaintiff’s work.The adaptor shall not infringe the copyright of the original work when exercising his or her copyright.Therefore, the exercise of the copyright of the adapted work or any use of the adapted work shall require the consent of the adaptor and the copyright owner of the original work, unless there are special provisions in the law; otherwise, not only the copyright of the adapted works, but also the copyright of the original works will be infringed.The TV series G was produced based on the script G.The script G was adapted from the plaintiff’s work without permission.Therefore, the production of the TV series G without permission infringed Q’s right of production.

The court comprehensively considered the responsibilities of Yu and the four companies during the adaptation of the script and the production of the TV series, and determined that the five defendants should be jointly and severally liable for jointly infringing the right of adaptation and production of the plaintiff’s work.The court finally decided that the act of reproducing, distributing, and disseminating the TV series shall be stopped,and the five defendants shall jointly compensate the plaintiff for economic losses and reasonable litigation expenses, which is RMB 5 million yuan.

In conclusion, when determining whether an infringement has been constituted, if the right owner files a lawsuit to claim his or her right of adaption, the right owner has the right to request the cessation of the subsequent use of adaptation right, that is, the reproduction, distribution and spreading of the work, and to ask for compensation of damages caused by these behaviors.In terms of copyright transaction (except for films and TV plays), the adaptor who has obtained the authorization of right of adaptation can reproduce, distribute and exploit the adaptation without the original author’s extra authorization; while a third party shall obtain the authorization from the adaptor as well as the original author to reproduce, distribute and spread the adaptation.

Picture 15 Summary of This Case