XXXII

Legal Precedent Reference

In this part, we will apply some of the concepts discussed earlier in this book to real-life cases.Each case includes several parts: summary of the legal precedent reference, basic facts and court opinions.We hope these will give you a better understanding of the Chinese entertainment law and judicial practise, and guide you to enter the Chinese entertainment market smoothly.

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.

(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

II

1.Right of integrity in the sense of Copyright Law means protecting a work from distortion and tampering.The judging criteria for infringing the “right of integrity” is generally to judge whether the infringer has the intention or malice of misinterpreting the work subjectively, and whether his or her behavior has reached the degree of harmful change of the work objectively.Besides, the judgment should be comprehensively determined based on whem the facts of the case.

2.When the copyright owner permits another person to make his or her work into a film work, it is deemed that he or she has allowed others to make necessary changes to his work, but such changes must not distort and tamper with the original work.Whether based on the right of adaptation or the “necessary alteration” of a film work, it should be limited to not infringing the right of integrity.In order to judge whether the changes of the film work have distorted or tampered with the original work, the following three aspects need to be considered.The first is to check whether the film has the same creative intention and subject matter as the original work.The second is to review whether the changes of film’s main plot, background settings and character relationship are necessary.The third is to comprehensively consider the public’s overall evaluation of the changes to the work.

Case 1: Ye is a translator of the works of a Japanese novelist, and is responsible for translating a novel into Chinese.The translation has three forms: hardcover compilation, paperback compilation and separate edition.Company A deleted the foreword, postscript and introduction of the translator when publishing a separate edition of one of Ye’s translations.According to this, Ye argued that the Company A’s act of deleting the foreword, postscript and translator’s briefintroduction in the separate edition infringed his right of integrity.Company A believed that the aforementioned foreword, postscript and translator’s introduction were not the main content of the books involved, and its act would not substantially change the core content of the work, and would not affect readers’ understanding and comprehension of the views and opinions expressed by the original author and translator in the work.Therefore,it did not constitute an infringement on Ye’s right of integrity.During the trial of the case, the court of first instance decided to immediately stop publishing and distributing novels involved in the case; the judgment of second instance revoked the judgment of first instance and rejected all claims of Ye; the judgment of retrial court rejected Ye’s application for retrial.((2018) Hu Min Shen No.1180)

The court held that: The right of integrity refers to the author’s right to protect the content, views, and forms of his work from distortion and tampering.Distortion refers to the intentional change of the truth or content of the work, and tampering refers to modifying or misinterpreting the work through falsification.Generally speaking, the infringer who violates the right of integrity often has subjective performance of distorting the work intentionally or maliciously; at the same time, objectively, the act of infringing the right of integrity often manifests as a substantial change to the meaning expressed in the work and the intention expressed by the author.Such changes generally include vilification or deletion, addition, or other harmful changes to the work that go against the author’s thinking.Therefore, the judgement of whether the alleged infringement infringes the right of integrity generally lies in judging whether the infringer has intentionally or maliciously misrepresented the work, and whether his or her behavior has objectively reached a level of harmful changes to the work.The judgment also should be comprehensively determined based on the facts of the case.

In this case, Ye, as a translator of the books involved in the case, enjoyed the copyright of his translation works, including the right of integrity.The original expressions in Ye’s translated works, as well as the foreword and postscript that condensed his creative efforts and intellectual achievements, should be protected by law, including protecting the right to protect the work from distortion and tampering.Specifically, the editors of Company A told Ye about the amendments and deletions during the publication of the book, for the purpose of publishing.It cannot be concluded that Company A and its editors have subjective intention or malice of misinterpreting the works involved.The foreword and postscript of the dispute were made by Ye for the translation work, not for book involved in the case.Subsequent publication of the book without using the forward and postscript translation is not enough to constitute a harmful change to the translation work involved.

In this case, the parties involved agreed that the publishing unit could change the relevant content of the work involved, but the results of the change should be approved by the author.This type of agreement is not only the declaration of the author’s right to defend his work from distortion, but also the right basis for authors to change the work within reasonable limits to meet the requirements of publishing.In summary, the alleged behavior did not infringe the Ye’s right of integrity.

Case 2: Zhang created a series of novel G and then signed a contract with Company A to transfer all the copyrights of the novel G to Company A, except for the personal rights of the author, which are the exclusive rights according to Chinese law.Company A and Company B signed a Copyright License Agreement to authorize Company B to obtain the production, reproduction rights and distribution rights.Company B then authorized the film adaptation and filming rights of the novel J (a part of G series) to Company C.Company C signed a cooperative investment agreement with Company D and Company E, agreeing to adapt the novel J of the G series into a movie and then this film was subsequently screened in major theaters across the country.However, Zhang, the original author of the novel, believed that the content of the film was severely distorted and tampered with the original, and it differed greatly from the original in terms of the character settings and storyline, which violated Zhang’s right of integrity.Then the case was brought to court.The court held that Company D, Company C, and Company E, as the copyright owners of the movie involved, collectively infringed Zhang’s right to protect the integrity of the work and shall bear joint and several liability.((2016) Jing 73 Min Zhong No.587)

China’s Regulation for the Implementation of the Copyright Law stipulates: “Where a copyright owner authorizes another person to make,based on his or her works, cinematographic works or works created in a way similar to cinematography, it is deemed that the copyright owner has permitted the authorized person to make necessary alteration of his or her works.However, such alteration shall not distort or tamper with the original works.”

In this case, Company C, as the adaptor, obtained the legal right of adaptation through authorization, that is to say, it shall be deemed to have obtained the right to make necessary changes to the original work, but such changes shall not distort or tamper with the original work, otherwise the adaptation may infringe the copyright owner’s right of integrity.Therefore, the freedom of an adaptor is not absolute, but limited.

Thus, the court held that: To determine whether the changes to a movie work have distorted or tampered with the original work, the following three aspects need to be considered:

(1) Examine whether the film has the same creative intention and theme as the original work.The film director acknowledged that the movie involved was a sci-fi movie type, and the novel was not a sci-fi theme, so the theme of the two was different.

(2) Examine whether the changes to the film’s main plot, background settings and character relationships are necessary.The defendant maintained that changes to the film were made for the purpose of passing China’s censorship of the film.The court held that film adaptors should correctly understand the requirements of China’s film censorship system and make appropriate adaptations based on the content and spirit of the original work, rather than arbitrarily change the original work.In this case, the court held that the film involved in the case made substantive changes to the main characters and the background of the novel involved, and made essential changes to the views and emotions expressed by the author in the original work, which constituted distortions and tampering of the original work.

(3) Comprehensively consider the public’s overall evaluation of changes to the work.The impact of the adaptation on the author’s reputation is not a constituent element of violating the right of integrity, but a factor in measuring the severity of the infringement.Although the public’s comments on the movie were not aimed at criticizing the novel, the evidence in the case has proved that the reputation of the author was devalued because of the adaptation of the movie.

Therefore, the court found that Zhang’s right of integrity was infringed, and ordered the defendant to immediately stop distributing,broadcasting and disseminating the film and to compensate Zhang for spiritual damages of RMB 50,000 yuan.

III

Authorities should be obtained from relevant rights holders when developing related derivative products of film and television series.If the derivative product is adapted and developed based on a certain inf luential film and television series work, and it will cause the public to mistakenly believe that the development of the derivative product is based on the authorization of the relevant rights holder of the film and television series, it is a case of making use of the market popularity of well-known(influential) works to make profits for oneself.There is a suspicion of“free-riding”, which constitutes unfair competition.

Case: Company B and Company S are the copyright owners of the well-known film F, which is adapted from the novel of the same name by writer M.Company Q developed and operated the online games F, table games F, and paper games F using the font design, movie stills, character images, character names, plots, etc.with the name of movie F without permission.Company B and S alleged that the above actions of Company Q constitute confusion and false publicity in unfair competition.((2011)Dong Min Chu Zi No.08214)

The court held that: With the rapid expansion of the film derivatives market today, there are many behaviors that rely on the popularity of movies to obtain illegal benefits at any link related to the film industry chain by means of “free-riding”, which tangibly or intangibly reduces the business interests of the right owner in the relevant market.

In this case, Company Q claimed on its website that game F was designed with the background of film F and had the relevant rights of film F.The content of the promotion was inconsistent with the facts and was false, deceptive and misleading.Company Q also used the character stills from the film F to compare and introduce them with the game characters, the result being that several characters in the game are similar to the corresponding characters in the film.The above-mentioned behavior of Company Q further caused the public to mistakenly believe that the game F was made with the authorization of the right owner of the movie,adapted from the movie.It used the market popularity of the film F to make profits for itself, and its behavior had a suspicion of “free-riding”,which constituted misleading publicity.

IV

1.The attribution of the final decision right, especially the final cut right, should be determined first in accordance with the contract.Only when the contract is unclear can the industry practice be considered when determining the attribution.

2.A contract signed to hire or commission a director is not an “entrusted legal relationship” in China’s legal system.Therefore, under the premise that the contract is not clearly stipulated, the unilateral arbitrary dissolution rule peculiar to the entrusted legal relationship shall not be directly applied, which is not only a necessary protection of the rights of the director, but also a necessary protection of the interests of investors.

3.Director’s right of authorship: In the process of film and television creation, on the premise that the director has fulfilled his contractual obligations in accordance with the contract, the production company shall sign the director according to the signature method agreed in the contract between the two parties, unless the director himself waives or agrees to modify the signature method.

Case 1: Company J cooperated with director Z’s to shoot the movie S,and the two parties signed the Chief Director Employment Contract.The contract assigned Z’s as the chief director of the film, directing the work of Zhu (the legal representative of Company J, the director of the film)and supervising the work of post-production (editing, music, sounds, and final film synthesis), and it is agreed that if there is a credit for the main creator, Z’s name and title should be independently ranked in the credit.However, after the filming was completed, there was a dispute between Z and Zhu regarding the choice of editing version.In the case where the two parties have not reached a consensus on amendments or supplementary opinions, Z issued a statement that he unilaterally terminated the execution of the contract in question, and did not participate in the post-production and final editing of the film.The screening is also based on the final edited version of Company J.In the film’s public release, Z’s signature status was “Previous Chief Director Z”.For this reason, Z filed a lawsuit in the court, requesting Company J to sign correctly, and to publicly show Z’s final film work S according to the agreement of both parties.Company J believes that Z made it clear that he no longer participates in post-production, and the two parties have actually terminated the performance of the contract.Therefore, it is in accordance with the actual situation and Z’s wish to title him as the “Previous Chief Director”.((2014) Su Zhi Min Zhong Zi No.0185)

The court held that: As the chief director of the movie S hired by Company J, Z has the final decision right on film and television creation according to the contract, and he had duly performed the contractual obligations of shooting and submitted an edited version ref lecting his intention as a chief director.According to law, he should enjoy the right of authorship of the chief director.The specific method of signature shall be implemented in accordance with the contract.

(1) The right of final decision on the cut version of the movie S.Whether the film and television production industry adopts a director-centered system or a producer-centered system, the attribution of the final decision right, especially the final cut right, in film and television play creation should be determined first according to the contract.That is, if the contract clearly stipulates that the director has the right of final cut or the investor has the right of final cut, the contract shall be followed.Only when the contract is unclear can the industry practice be considered when determining the attribution.Since the contract clearly stipulates that the chief director has the right to make a final decision on artistic creation, and the artistic creation of film and television play includes the preparation, mid-term shooting and post-production process,unless the contract explicitly stipulates that the final cut right is excluded, the chief director’s right to make a final decision on artistic creation should include the final cut right.

(2) The right of authorship.The Copyright Law stipulates that the copyright of a cinematographic work belongs to the production entity,and the director has the statutory right to sign as the director.Since Z has completed the director’s work and has submitted the director’s edited version for “supervising and directing post-production”, and especially since the release version has used all the shots directed by Z, then according to the contract, Company J should give Z an independent signature of “Chief Director” on the credit title unless Z himself waives it.

(3) The unilateral declaration by Z that the termination of the contract involved in the case is not regarded as the termination of the contract.In the case where the parties have not agreed on the method of termination of the contract, the director’s employment contract, as a non-entrusted legal relationship, shall not directly apply the unilateral arbitrary termination rules peculiar to the entrusted legal relationship.Therefore, the court held that Company J had not signed Z’s statement, and the contract could not be unilaterally terminated, so the legal effect of termination did not occur.Thus, Company J’s failure to provide independent subtitle to Z signature as the chief director in the film’s credit title constituted a breach of contract.

V

1.When two or more people participate in co-creation of a script together, the producer will give a specific title (such as “Chief Screenwriter”, “Original Screenwriter”) to ref lect the different division of work and role of each screenwriter.

2.Screenwriter’s right of authorship shall be in line with his or her participation in the entire TV play script, and with the value of creation stipulated in the contract.Without a special agreement in the contract,creators with minor contributions shall not have the screenwriter’s right of authorship.

Case 1: J and Company F signed a Script Creation Contract, hiring him to be the screenwriter of the TV series M.J has the right of authorship on the screenplay in the TV drama’s title; however, if the script submitted by J cannot meet Company F’s requirement, Company F has the right to hire others to modify the script, where J still has the right of authorship as one of the screenwriters in the TV series while the order shall be determined by Company F.J submitted a script outline and entire script of the TV series M to producer C, but Company F believed that the script could not meet the shooting requirements.Company F hired W as a screenwriter to modify the J’s original script and agreed that W has the right of authorship for the screenplay in the TV drama.Based on J’s script and shooting scene, W completed the revision, creation and finalization of the entire script.Later, during the release and dissemination of the TV series, the TV drama’s title, DVD box, brochures, etc.stated, “adapted from a novel of the same name by J”, “Original Screenwriter: J” and “Chief Screenwriter: W”.J believes that he has made the greatest contribution to the creation of the drama and should be the first screenwriter of the script.Company F’s assignment for W as the“Chief Screenwriter” is bound to make the public believe that W is the first screenwriter of the play, undermining the appellant’s right of authorship as the first screenwriter.

The court held that: According to the agreement of the Script Creation Contract, when the script submitted by J still could not meet the requirements after modification, Company F had the right to hire W to modify the script and determine the order of signatures.Both W and J played an important role in the creation of the script for the TV series.Company F’s determining W to be the first author did not violate the contract.When two or more people participate in co-creation, the producer will give a specific title (such as “Chief Screenwriter”, “Original Screenwriter”) to ref lect the different division of work and role of each screenwriter.This practice itselfis not illegal.Judging from the entire creative process of the TV drama script, W objectively played a guiding and overall role.It is not inappropriate for Company F to title W as “chief screenwriter”; the title of “original screenwriter” also objectively ref lects J’s original and pioneering role.According to the understanding of the text, there is no obvious difference between the “chief screenwriter” and the “original screenwriter”, and there is no evidence that there are standards or conventions in which the chief screenwriter in the field of script creation must make a higher and more prominent contribution to the work than other screenwriters.The court rejected J’s claim.

Case 2: Company T signed a Writing Contract with H and L respectively.H and L are hired as the screenwriter M’s assistant and participated in the script creation of thirty episodes of the TV series B.H and L were responsible for fifteen episodes each.M provided a framework of ideas, characters, and plots, and proposed amendments to the first draft and edited the draft as a whole and finalized the draft.H and L created the script accordingly.After H and L cooperated to complete the first and second episodes of the script, they stopped writing the script for some reason.At the time of the broadcast of the TV series B, the named playwright of the television series was M.The copyright owner of the 45 episodes of the TV series B registered in the Copyright Protection Center of China was only M as well.H and L asked the court to confirm their right of authorship of the TV series and the script.((2015) Chao Min (Zhi) Chu Zi No.4495)

The court held that: From the perspective of the contract, although the contract involved in the case agreed that H and L had the right to authorship as assistants when the TV drama was broadcast, H and L each did not fully fulfill their obligations to create fifteen-episode scripts.The realization of the right of authorship shall be matched with the degree and depth of participation in the creation of the entire TV play script,and with the value of creation agreed in the contract.From the perspective of practical use, H and L’s scripts are not the same in terms of character personalities and specific plot description compared to M’s scripts.As for the similarities between the two scripts, the creation of H and L did not go beyond the framework of M’s conception, and the final script did not make full use of the original contents of H and L’s script.The court rejected H and L’s claims.

VI

When a company cooperates with a sponsor in terms of the placement of advertisements, if there is agreement in the contract, the length and number of embedding advertisements shall comply with the contract; otherwise it constitutes a breach of contract.If there is no clear contractual arrangement, the sponsor may directly deduct the corresponding amount of the unfulfilled broadcast or missing broadcast according to the contract.When the number of embedding advertisements becomes one of the payment terms of the contract, the sponsor shall promptly confirm the accuracy of the number; otherwise it may be deemed to have no objection and shall perform the payment obligation.

Case 1: Company Y signed a contract with Company J, stipulating that Company Y would provide an online Spring Festival Gala advertising service for Company J and the advertisement would be broadcast for a total of 10 times.Company J would pay a contract sum of RMB 2,600,000 yuan.After the contract was signed, Company J refused to pay Company Y for advertising with because the actual advertising sample was inconsistent with the agreement in terms of advertising content and duration.Therefore,Company Y appealed to the court.((2015) Yi Zhong Min (Shang) Zhong Zi No.2598)

The court held that: Company J only rebroadcast the gala seven times on its TV station, and the content of the rebroadcast did not include certain parts which were agreed in the contract.There was a case of unfulfilled broadcast and missing broadcast, so Company Y constituted a breach of contract.According to the agreement, Company J could directly deduct the corresponding amount of less broadcast or missed broadcast, and only pay the advertising fee for the actual content rebroadcast that Company J has actually performed.

Case 2: Company Z and Company G signed a TV Drama Cooperation Agreement, which agreed that Company G would be responsible for Company Z’s customer, Company H, to make embedding advertisements of Company H’s brands and products in the TV series.They made the following agreement on the second payment: After the shooting was completed, Company G would provide the Company Z with a high-resolution sample.When Company Z receives the sample, it shall confirm the number of the embedding advertisements (only confirm the number, not review the quality) and 30% of the total amount of sponsorship fee shall be paid to Company G within 60 days.Company Z asserted that Company G did not confirm the number of embedding advertisements with it and there was a risk that the TV series may not be broadcast so it terminated the contract.Company G argued that the sample had been delivered to Company Z via mail and it also gave an optical disc containing the sample to Company Z.Company G had fulfilled its obligations under the agreement.Company Z had not raised an objection to the sample and shall fulfill its second payment.((2018)Hu 01 Min Zhong No.99)

The court held that: The two parties disputed whether the conditions for the second payment of Company Z were fulfilled according to the agreement.The second payment terms that they agreed upon are: “After the shooting is completed, the Company G provided Company Z with a high-resolution sample.When Company Z receives the sample, it shall confirm the number (only confirm the number, but not review the quality) and pay money to Company G within 60 days.” The facts show that Company G sent the agreed number of samples to Company Z.Company Z claimed that the number of samples had not been confirmed because of the lawsuit, but the closure of the communication channels between the two parties due to lawsuits was not a legitimate reason for not confirming the number of samples.Company Z did not raise an objection to the number of embedding advertisements within 60 days after receiving the samples, which should be regarded as the recognition of the number of embedding advertisements.

Company Z argued that payment should be suspended because there was doubt about whether the disputed TV series could be broadcast on the agreed platform as scheduled.However, the obligation to inform Company Z about the progress of the shooting process as stipulated in the agreement is not a prerequisite for Company Z to make the second payment, and Company Z’s defense proposal about the right of first performance lacks factual basis.

In summary, the court held that the terms of the second payment in the agreement had been fulfilled.Company Z failed to pay the money according to the agreement, and did not performed within a reasonable period after being urged by Company G.Its behavior has constituted a fundamental breach of contract.According to the agreement, Company G had the right to terminate the contract.Case 2 differs from Case 1 in this way: In Case 1, Company Y had unfulfilled broadcasts during the actual performance of the contract; in Case 2, though, the two parties agreed to pay only after confirming the number, so the court determined that Company Z recognized the conditions for payment when it did not raise an objection within the agreed time.

VII

According to Criminal Law of China, any person or unit will be found guilty of the crime of contract fraud and bear criminal responsibility if they perform one of the following acts in order to illegally obtain the property of the other party in the process of signing and fulfilling a contract: (1) signing a contract in the name of a fictitious unit or fraudulently using another person’s name; (2) making assurances with forged, altered or voided bills or other false certificates of property rights; (3)without actual performance capability, tricking the other into continuing to sign and to perform the contract by small-scale contracts or partial performance of contracts; (4) receiving the goods, debit,prepayments or the property secured by the other party; and (5) defrauding the other party’s property by other methods.

Case: On July 15, 2013, Z used false identity information to establish Company A which had a registered capital of RMB 1 million yuan, and none of the shareholders actually contributed capital.From July to October, 2013, Z negotiated with victim Company B and its operator X about the movie shooting, and signed a Letter of Intent for Co-production of a Film (single film) with Company B on behalf of A.Later, Z lied that he had obtained a film production license (single film), and signed a Movie Co-production Cooperation Agreement with X.Z provided materials(such as Work Plan of the Film Team, Application Form for Film Projects, Employment Contract for Film Casting Personnel, and Employment Contract for Associate Directors, etc.), fabricated the reasons for paying the costs of actors, directors, and photographic equipment, and requested Company B to send money via mail, WeChat, etc.During that period, Z deceived Company B eight times to pay a total of more than RMB 7.23 million yuan in project costs.((2014) Chang Xing Chu Zi No.1015)

The court held that: The behavior of Z constitutes contract fraud.Z used the joint production of a film as bait.During the process of signing and performing the contract, Z defrauded Company B by fabricating the costs of employees and equipment.Z tricked Company B into continuing to perform the contractual obligation to pay the investment in installments by partly performing the contract, such as paying the screenwriting fee and the filming ceremony preparation fee.Z’s illegal income,which he had no intention of returning, was all used for himself and his relatives rather than contractual matters.Based on the circumstances,the court finally ruled that Z was guilty of contract fraud.

VIII

1.Fraudulently raising funds in the name of film or television investment, when in fact the funds are meant for permanent illegal possession,constitutes the crime of fraud in financing if the amount is quite big.

2.Taking deposits from people illegally or in disguised form and disrupting financial order in the name of film and television investment, when in fact the deposits are meant for temporary absorption,constitutes the crime of fraudulently absorbing deposits from people.

3.Any natural person who carries out the above-mentioned illegal fund-raising activities in the name of a company whose main business after establishment is to carry out illegal activities, shall be held criminally liable according to the law.

Case: J set up Company R for the purpose of raising public deposits without an actual investment project.Without approval, Company R hired people to fictionally publicize a certain film and television investment and wealth management project to the public through advertising,installing electronic billboards outside the store and giving out flyers.The project raised funds in the form of signing a fund entrustment contract or lending agreement illegally.It defrauded a total of more than RMB 23,990,000 yuan.J used most of the funds for personal prof ligacy,so that the funds could not be returned to the public, and he destroyed the account after that.

Employees C and Z of Company R jointly promoted this project to the public and signed contracts with clients, received and transferred investment funds, and paid interest to clients, etc.They obtained commissions from J separately.C and Z totally took the public deposits of over RMB 19,910,000 yuan.((2019) Su 05 Xing Zhong No.707)

The court held that: J’s behavior constitutes the crime of fraud in financing.J used most of the fund-raising funds for repayment of principal and interest, personal prof ligacy, and gambling.He had no intention of returning the money.This case belongs to the category of illegally raising funds by fraud for the purpose of illegal possession, and the amount is particularly large.The employees Z and C worked and earned commissions because they believed that the project is an investment project that normally pays interest and repays the principal, and has no permanent illegal possession purpose.Thus, their behavior did not constitute a crime of financing fraud.However, Z and C publicized wealth management products, signed investment contracts, and absorbed funds from the public, knowing that Company R does not have a financial license and does not have the qualifications to engage in the business of absorbing public deposits; the two persons had a subjective intention to illegally absorb public deposits, and objectively performed an act of absorbing public deposits, thus constituting the crime of illegally absorbing public deposits.

IX

If any work, such as written works, music, films, television programs,videos and other products, requires permission but is distributed or reproduced without the permission of the copyright owner, it is an infringing duplicate work.Selling goods that are known to be infringing duplicate works for the purpose of making profits constitutes the crime of selling tortious duplicate works.

Case: X knowingly purchased more than 200,000 pirated optical discs at low prices for sale.As identif ied by the Shanghai Press and Publication Bureau, the above-mentioned audiovisual products were all illegal audiovisual products.((2013) Yang Xing (Zhi) Chu Zi No.107)

The court held that: The movies, television, video and other products reproduced and distributed without the permission of the copyright owner are infringing duplicate works.X purchased more than 200,000 copies of audiovisual products that were known to be infringing products for sale for the purpose of making profits.His behavior has constituted the crime of tortious duplicate works.X should be punished according to the law.

X

1.According to Criminal Law of China, whoever commits the following acts for profit, gaining a fairly large amount of illicit income or revealing other serious circumstances, has committed a crime for copyright infringement: (1) copying and distributing written, musical, movie, televised, and video works as well as computer software and other works without copyright owner’s permission; (2) publishing books whose copyrights are exclusively owned by others; (3) reproducing and distributing audio and visual works without the permission of their producers; and (4)producing and selling fine art works which has fake signatures.

2.When a unit commits a crime of infringing intellectual property,there will be a fine imposed, and the principal person and other personnel of direct responsibility shall be punished according to the law.

Case 1: As the manager of Company A, H has made profits since 2016 by operating a game with others and hiring agents to sell virtual currency which can be used in the game.The source code of this game and the game copyrighted by Company B are extremely similar and Company A’s use was without Company B’s permission.((2018) Jing 0108 Xing Chu No.1932)

The court held that: Company A and its direct supervisor H, who for the purpose of making a profit, reproduced and distributed computer software owned by others without the permission of the copyright owner.The circumstances were serious, and his behavior had constituted a crime of copyright infringement and should be punished.

Case 2: From 2012 to 2013, G and H collected more than 500 films and TV works from online sources.These works’ rights of information network dissemination were owned by Company T, Company L and others,but G and H uploaded these works without permission to three websites open to the public.The three websites provided the public with on-demand viewing service of the above-mentioned film and television works free of charge.At the same time, the websites profited by collecting fees from published advertisements on the webpages.((2015) Hai Xing Chu Zi No.33)

The court held that: For the purpose of making profits, G and H spread other people’s film and television works to the public through an information network and distributed other people’s copyrighted works without permission.The circumstances are serious, and their acts have constituted the crime of infringing copyright, which should be punished.

XI

If a gala show presented on the Internet can reflect the producer’s unique choice and arrangement of performance programs, because of its high degree of originality, it can also be considered as a subject protected by the Copyright Law of China as “a work created in a way similar to cinematography”.Real-time rebroadcasting by others without permission violates the “other rights which shall be enjoyed by the copyright owners”under the Copyright Law.

Case: Company A was authorized by CCTV to obtain the exclusive right (including but not limited to internet, mobile platforms, IPTV, car TV and other new media communication platforms) to transmit, broadcast (including but not limited to real-time broadcast or delayed broadcast) and provide all TV channels of CCTV to the public.Company A found that Company B provided its users with the real-time broadcast service of a gala show program produced and filmed by CCTV in the mobile app software it developed and operated without permission, and argued that such behavior violated its legitimate rights and interests.((2018) Jing 73 Min Zhong No.1535, other similar cases such as (2017) Jing 73 Min Zhong No.840, (2015) Hai Min (Zhi) Chu Zi No.27389)

Regarding whether the gala program constituted a work protected by the Copyright Law of China, the court held that: in this case, the CCTV gala involved is different from a live stage performance.The gala’s program period is an image formed by CCTV during the gala on-site after editing.The shooting process of the gala is usually directed by the chief director, cameraman, and editor-in-chief.According to the script prepared in advance, the live performance is shot at different angles.At the same time, the director needs to make on-site selection and arrangement of the shooting scene, and insert subtitles, pre-recorded short films and external scenes to the program.

The gala involved in the case presented through the Internet was not a simple mechanical recording of live performances; it ref lected the producer’s unique selection and arrangement of performances, incorporated creative labor, and reached a high degree of originality.Therefore, the gala involved in the case constitutes a work under the protection of the Copyright Law.By shooting and filming, its major creative process is to mix and fix, various pictures of the artistic performances of a certain medium, such as songs and dances, sketches, cross talks, and operas, which should be regarded as “a work created in a way similar to cinematography”.

Real-time network rebroadcasting refers to the collection and conversion of live broadcast signals of television or radio stations into digital information and providing the digital signal to network users for viewing in real time through a network server.Regarding what kind of rights the copyright owner infringed when rebroadcasting the program, the court held that: the “Right of Information Network Dissemination” stipulated in the Copyright Law is the right to provide works to the public by wired or wireless means, so that the public can obtain the work at the time and place of their personal choice.Since the real-time network rebroadcasting uses a non-interactive transmission method that the user cannot obtain the work at the time or place selected by the individual, but can only obtain the work within a specific time specified by the network service provider.Differing from the behavior controlled by the right of information network dissemination, the real-time network rebroadcasting cannot be protected by the “Right of Information Network Dissemination”.

In view of the fact that the Copyright Law does not have a named right corresponding to this act, the court finally decided that the unauthorized network real-time rebroadcast of the gala involved infringed on the “other rights” enjoyed by the copyright owner and Company B should pay the right holder economic losses.

XII

Although the operator cannot directly make profits by playing background music in the business place, the operator shall still obtain authorization from the copyright owner and pay reasonable royalties to the copyright owner if playing background music is beneficial to create a good atmosphere and then improve customers’ enjoyment when they go shopping, which can promote the business; otherwise, it will constitute infringement.

Case 1: Company A played a well-known Chinese popular song X in the mall it operates without authorization, and the Music Copyright Society of China became the right owner of the song through authorization.After learning about the situation, the Music Copyright Society of China applied to the notary office for preserving evidence of Company A’s infringement and filed a lawsuit in court.Finally, the court ruled that Company A should immediately stop using the case-related musical works and compensate Music Copyright Society of China for economic losses and reasonable expenses of RMB 3,500 yuan.((2019) Min 0102 Min Chu No.147)

The court held that: Company A publicly played the case-related musical work as background music in the business place without permission, infringing on the relevant right owners’ rights of performance,and shall bear the corresponding civil liability.Regarding the amount of compensation, Music Copyright Society of China cannot prove the loss it suffered caused by the infringement of case-related musical work.Furthermore, no evidence can be cited to prove the illegal gains of Company A, so the court of first instance comprehensively considered the type and popularity of this song, and the location of Company A’s business premises, the actual operating area, ways of use, the extent of subjective intention of the infringement and other factors to determine the amount of compensation.In addition, the court supported that Music Copyright Society of China shall be compensated for the notarization fee, attestation consulting service, copy comparison fee, costs for transportation and accommodation costs and other necessary and reasonable expenses generated by Music Copyright Society for conducting evidence preservation and filing a lawsuit to stop infringement.

Case 2: Company B’s branch company played the musical work “W”as background music publicly in its business place without permission and did not pay royalties.After discovering the infringement, the Music Copyright Society of China that enjoys the copyright of the song negotiated and sought counse with the Company B, but Company B and its branch refused to resolve the issue of copyright authorization with the Music Copyright Society of China by negotiation.Therefore, the Music Copyright Society of China filed a lawsuit in court.((2013) Hang Bin Zhi Chu Zi No.55)

The court held that: The right of performance refers to the right to publicly perform works, and to publicly broadcast the performance of works by various means.The copyright owner may permit others to exercise the right of performance, and receive remuneration accordingly.Company B argued that it had signed a Background Song Playing License Agreement with an outsider Company C and had obtained legal authorization of the case-related song, but it did not submit evidence to prove this fact within the period specif ied by the court, so it should bear the legal consequences.Although Company B’s branch cannot directly make profits by playing background music in the business place, it shall pay reasonable royalties to the copyright owner because playing background music was beneficial to create a good atmosphere and improved customer’s enjoyment when they went shopping, which promoted the business.

Company B’s branch publicly played the musical work “W” as background music at its business place without permission and did not pay the remuneration, which infringed on the Music Copyright Society of China’s right of performance for the work involved.Company B shall bear the civil liability for stopping the infringement and compensating.Since Company B’s branch had no independent legal personality, Company B and its branch shall jointly bear the corresponding liability for compensation.Regarding the amount of compensation for infringement in this case, as Music Copyright Society of China did not provide relevant evidence of its actual loss and infringers’ profits gained from the tortious acts, the court considered the type, popularity of the music work involved, the defendant’s business model, the scale of business, the infringement plot, and reasonable royalties to use the case-related musical works to determine the compensation fee Company B and its branch shall pay for the economic losses of the Music Copyright Society of China and the reasonable costs incurred by instituting a lawsuit, the amount of which is RMB 3,200 yuan.

XIII

1.According to Paragraph a, Article 3.1 of the Berne Convention for the Protection of Literary and Artistic Works, works created by nationals of member states that have joined the Convention are protected in China whether or not they have been published.

2.If a part of a song that others have copyrighted is sung during the performance, even if the entire song involved in the case is not sung, as long as the above content can make the public aware of the main part of the work, the unauthorized implementation of the act may also constitute a violation of copyright.

3.The producer of a TV program shall fulfill relatively strict censorship obligations for the songs and videos involved in the performance of the program.When the above content is used in a performance, the producer of the program shall be obliged to obtain the license of relevant copyright owners and pay remuneration for all the performances.If the producer of the program obtains the license by entrusting the performer to obtain the authorization independently, the producer shall strictly check whether the authorization is legal and complete, and shall bear a stricter review obligation.

Case: P wrote a song A in December 2007.P agreed that his student M could sing a small part of the song on the program which was produced by a French television station in May 2008.In addition, P did not authorize M to perform this song on other shows and occasions, and had explicitly rejected the requests to use this song.At the same time, P also explicitly informed the director Wang of China’s TV station C that he did not authorize M to use his works in the program.However, M and China’s TV station C used P’s works in the program recorded in August,2008, and even tampered with the songwriter’s signature on the work.P believed that the acts of M and China’s TV station C have infringed on his right of publication, right of authorship, right of integrity, right of performance, right of broadcasting, etc.((2008) Yi Zhong Min Chu Zi No.11472)

The court held that: The actions of M and China’s TV station C violated P’s right to publicize, sign, perform, and broadcast the original song,but did not infringe its right to protect the integrity of the work.

P is a citizen of the French Republic.Both the French Republic and China are members of the Berne Convention for the Protection of Literary and Artistic Works.According to the Berne Convention for the Protection of Literary and Artistic Works, P’s work is subject to the law in China whether or not it has been published.In this case, M publicly performed the case-involved song of which P enjoyed copyright in the program of China’s TV station C without P’s permission, and tampered with the songwriter’s signature on the work.Although M only sang the second bar and the climax of the song, and did not sing the entire song, the above contents have made the public obtain the main part of the work, which also constituted an infringement of the right of authorship, right of performance, right of broadcasting.At the same time, because the song involved in the case has not yet been published in public, this act also violates P’s right of publication.

TV station C as the producer of this TV program involved in the case shall obtain the permission of the copyright owner and pay the remuneration for the performance organized by the program.If TV station C obtained the license by entrusting the performer to obtain the authorization independently, it shall strictly check whether the authorization was legal and complete.In view of the relatively strict review obligation that TV station C should assume, TV station C did not make any verification when it knew that the author of the song had not explicitly authorized the song, so TV station C was at fault.Therefore, the above-mentioned evidence is not enough to prove that C has fulfilled its duty to review whether the performance of M has obtained the permission of the copyright owner.TV station C used P’s copyrighted song in the performance of its organization without his permission.China’s TV station C and M infringed P’s right of publication, right of authorship, right of performance and right of broadcasting.

In this case, as M did not sing all the parts of the song in question,there was no act of distorting or tampering with the song involved in the case, and such performance did not hinder the public’s understanding of the song, and did not damage the reputation of P.Therefore, the court decided that M and China’s TV station C did not infringe P’s right to protect the integrity of works.

XIV

1.The use of other people’s music works is usually divided into substantive use and reasonable use.Substantive use of other people’s music works without permission constitutes infringement.To determine whether a substantive use is constituted, consideration should be given to whether the content used can fully ref lect the ideological content that the author hopes to express through the work, and whether the pieces of music used can ref lect the melody, rhythm, harmony, polyphony arrangement and design of the author’s artistic personality in the musical works.

2.When using a musical work in a film or television drama, if the use involves only a few measures or lyrics of the work, and the entire lyrics or score is not used, it shall be considered as a reasonable use, where musical works can be used without the permission of the copyright owner and no remuneration need to be paid, but the author’s name and the work’s name shall be specif ied.

3.If the song is produced by cooperation, the lyrics and music can be used separately, and the copyright of this song can be enjoyed by the composer and lyricist separately.

Case 1: The Music Copyright Society of China is a collective management organization of musical works copyright in Mainland China.It has signed a contract with the copyright owner of Songs A and B and was authorized to become the copyright owner of song A and song B, has the right to manage the right of public performance, broadcasting, and right of recording and distribution, and can file an infringement lawsuit in its own name.When Company C produced the TV series J, the above songs were used without the permission of the copyright owner or its authorized agency the Music Copyright Society of China.In the first episode of the series, an actor sung song A for 56 seconds, and in the thirteenth episode an actor sung song B for 17 seconds.The Music Copyright Society of China claimed that Company C’s unauthorized use of the above-mentioned music clips in the TV series J constitutes an infringement.Company C argued that it only used the above music for the atmosphere, and the time of use was very short.((2004) Gao Min Zhong Zi No.627)

The court held that: To determine whether Company C committed copyright infringement, the key issue in this case is how to determine the nature of Company C’s use of the above-mentioned works in the series.Regarding this issue, the court distinguished between the following two situations: (1) If someone uses a relatively complete piece of lyrics or music, although the time is short, the lyrics used have fully expressed the thoughts that the author hopes to express through the work and the music used which accounts for a certain proportion in the entire work has presented an arrangement and design of melody, rhythm, harmony and polyphony with the artistic personality of the author, which should be defined as a substantial use of musical works.In the TV drama involved in the case, the use of the musical work A was performed by singing the complete lyrics twice for a total of 56 seconds, so this use of the work was a substantial use of the work.(2) If the use of a musical work involves only a few passages or lyrics of the work, and the entire lyrics or score is not exploited, considering that the proportion of the used part in the entire musical work is small, the complete expression of the work and the ideological content expressed by the author and the author’s unique conception of the music are not reproduced substantially, and that the form and content used are very limited and will not adversely affect the market value of the musical work, nor will a threat to the distribution of the musical work be posed, that is, it substantial damage to the interests of the copyright owner will not be caused, such use shall be considered as a reasonable use of other people’s works, where musical works can be used without the permission of the copyright owner and no remuneration need to be paid, but the author’s name and work name shall be specif ied.In the TV series involved, the use of Song B by Company C only involved a few passages or lyrics of the work.Although the musical work was used for a long time, it did not use the entire lyrics or score completely, which should be considered as a reasonable use.

Company C essentially used the lyric content of musical work A in the TV series J.As a collaborative work, the lyrics and music of the song can be used separately, and the copyright of this song shall be enjoyed by the composer and lyricist separately.Therefore, as long as the copyright contract signed by the Music Copyright Society of China and the music songwriter or author is legal and valid, Company C’s use of the musical work in the TV series J without permission constituted an infringement of the Music Copyright Society of China.

XV

In view of the large investment in television series and the wide scope of the dissemination, if the order to stop the infringement is bound to cause a great waste of social resources and will harm the public interest,even if a TV series violates the rights of the music copyright owner by using another person’s music without permission, the court may not support the rights owner’s claim of suspending the broadcast, but instead take this factor into account when determining the amount of compensation.

Case 1: Z is the author of the musical work A.Z claimed that Company Y invested in shooting and completed the TV series X in 2009.In the 43rd episode of the series, the musical work A was used as interlude song without permission.The length of the interlude was about 1 minute and 15 seconds.However, Company Y did not indicate the author of this interlude was Z.Z then filed a lawsuit in the court, asking for the order to stop Company Y’s infringement (including stopping the broadcast, sales and online transmission of TV series X, etc.) and requested compensation for losses.((2012) Gao Min Zhong Zi No.4116)

The court held that: Z is the author of the musical work A, and his copyright is protected by Chinese law.The interlude A was used in the 43rd episode of the TV series involved, without Z’s permission and without giving Z a signature or paying him remuneration, which has already constituted an infringement upon Z’s right of authorship, right to use,and the right to license others to use the music work and get paid.However, although Z also requested that the court order Company Y to stop the infringement, the court did not support his claim because it may cause a great waste of social resources and would have adverse consequences for the public in view of the large investment in television series and the wide scope of dissemination.But the court would take this factor into account when judging the compensation.

In the court decision of Beijing High People’s Court (2004) Gao Min Zhong Zi No.627, “there is no legal basis to use the public interest as the reason to sell infringing duplicate works, and the original court’s judgement was inappropriate”.Compared with the lawsuits between Z and Company Y in 2012, it can be seen that in 2012 when Beijing High People’s Court identif ied similar issues, specific analysis was made based on factors such as the facts, the actual scope of the work’s dissemination,and the production cost, which did not exclude the way of avoiding taking effective measures to stop the infringement in order to protecting social resources and public interests.

XVI

A performance that is not profitable, and shown only for the purpose of advertising, is still a commercial performance, whose organizer shall apply to the culture administrative department of the county-level people’s government in the place where the performance is located in advance to obtain approval documents; otherwise it will be determined as “hosting unapproved commercial performances”, which may encounter the following administrative punishments: injunction, confiscation and fine.If the circumstances are severe, the commercial performance license may be revoked.

Case: The real estate company A entrusted a culture communication company B to hold a household product launch and a celebrity in order to increase its popularity and show gratefulness to customers.Company B was responsible for running advertisements and giving away tickets prior to the performance.The performance was to thank the customers,thus, all the tickets were given away.The company did not make a profit.However, as the company verif ied that it had not applied for a commercial performance license in advance, it was required to stop the performance immediately, and was fined RMB 51,000 yuan.(Le Wen Fa Zi [2018]No.069).

According to the Detailed Rules for the Implementation of the Regulation on the Administration of Commercial Performance, commercial performances refer to live cultural performances which are held for the public with the purpose of making profits through the following ways: (1) selling tickets or being sponsored; (2) paying or remunerating the performance entities or individuals; (3) using the performance as a medium for advertising publicity or sales promotion of products; (4) organizing performance in any other profit-making form.The above-mentioned case belongs to item (3), which is an event organized for advertising, and is a“commercial performance” as defined by law.According to the Regulation on the Administration of Commercial Performances, organizing commercial performances requires applying for approval documents in advance,otherwise administrative penalties will be faced, including: an order to stop performances, confiscation of any illegal income, a fine not less than 8 times nor more than 10 times of any illegal income; if there is no illegal income or the illegal income is less than RMB 10,000 yuan, a fine of RMB 50,000 to RMB 100,000 yuan shall be imposed.If a serious consequence is made, the business performance license shall be revoked by the original license-issuing authority.

XVII(https://www.daowen.com)

The company’s use of mobile phone software to sell commercial performance tickets is a “commercial performances business activity” and requires the application of a “commercial performance permit”; otherwise, it will face administrative penalties and may even bear criminal responsibility.

Case: Company A involved in the case produced, developed, and operated the mobile phone application software F without holding the“commercial performance permit”, and sold live concert tickets for W concert on F software.The Beijing Cultural Market Administrative Enforcement Corps imposed a fine of RMB 50,000 yuan on the company.(Posted on the official website of Beijing Cultural Market Administrative Enforcement Corps.)

According to the Regulation on the Administration of Commercial Performances, a performance brokerage institution that applies for engaging in commercial performance brokerage shall have three or more fulltime performance brokers and funds suitable for its business, and file an application with the culture administrative department of the people’s government of the province, autonomous region or municipality directly under the Central Government.Company A’s use of software to sell concert tickets is a “commercial performance business activity”, and should apply for a “commercial performance permit”.This case is the first case in Beijing in which administrative penalties were applied for sales of commercial performance tickets using mobile terminal applications(APP).Relevant departments of the Chinese government effectively regulate the order of the performance market through the handling of such cases.

XVIII

The hosting entity shall apply for approval documents strictly according to the elements of performances and hold performances based on the license content.If it is necessary for the hosting entity to change any performance elements, such as the actors, time, place and total number of performances, the hosting entity shall reapply for approval, otherwise it may receive administrative punishments such as confiscation of illegal gains and a fine.

Case: In order to hold a commercial performance, Company J applied to the relevant government department for a Commercial Performance Permit.The performing group is S art troupe, and the main employees registered on the Commercial Performance Permit held by the art troupe are A, B, F, C, and G.In the actual commercial performance, there were 5 actors performing in the S art troupe, namely A, B, C, D, E.Among them,D and E are not on the employee registration list.Company A did not reapply for the change of actors, which violated relevant rules of Regulation on the Administration of Commercial Performances.In response, the relevant administrative subject ordered Company J to stop the performances,confiscated the illegal gains of RMB 150,000 yuan and imposed a fine of RMB 50,000 yuan.((2013) Hu Yi Zhong Xing Zhong Zi No.103)

According to Article 16 of Regulation on the Administration of Commercial Performances, in order to apply for holding commercial performances, the following materials are required: (1) the name of the performance,hosting entity and participants of cultural and artistic performance group and actors; (2) the date, place and total number of performances;and (3) the programs and the relevant audiovisual materials.The applicants shall reapply for the approval when it is necessary for them to change items listed on the application form.

XIX

If a performance (such as a cultural evening, a personal concert, etc.)involves the use of a copyrighted work by others, the organizer of performances shall, in advance, obtain the permission of the copyright owner.If the copyright owner’s permission is not obtained and infringement is caused because of the unauthorized use, the performance organizer, not the performer, shall bear legal responsibility.

Case: A Chinese singer A performed another singer B’s song “Song M”at A’s own concert tour without obtaining B’s permission in advance or paying the remuneration.This concert tour was co-hosted by Company X and Y, and Company Z was the local partner of this tour concert in Luoyang, China.

Singer B, as the copyright owner of this song, sued to the court.The court finally ruled that the three defendants Company X, Y and Z infringed singer B’s copyright and shall jointly compensate singer B RMB 100,000 yuan (including reasonable expenses).((2018) Zhe No.0109 Min Chu No.17142)

According to the relevant provisions of the Copyright Law, when a performance organizer organizes a performance, the performance organizer shall obtain permission from the copyright owner and pay the remuneration.

If a performer uses works whose copyrights are enjoyed by others during the performance, the performance organizer will have a direct interest relationship with the copyright owner of these works.The performance organizer shall be responsible for obtaining prior permission from the copyright owner of the work if the work is to be used by the performer in the organized performances.

The infringer (performance organizer) in the case violated the principle of “obtain authorization first, then use”, and used B’s musical works for the performance at a commercial concert without the plaintiff’s permission or paying remuneration, which infringed B’s right to perform.The infringer shall bear civil liabilities such as stopping the infringements, eliminating the effects of the act, making a public apology or paying compensation for damages, depending on the circumstances.

In the determination of the amount of infringement compensation,according to relevant laws and regulations, if the copyright or other rights related to copyright are infringed, the infringer shall pay compensation on the basis of the actual losses of the copyright owner; if the actual losses are difficult to be calculated, compensation may be made on the basis of illegal gains of the infringer.The amount of compensation shall also include the reasonable expenses paid by the right owner to stop the infringement.If the actual losses of the right owner or the illegal gains of the infringer cannot be determined, the people’s court shall adjudicate compensation of RMB 500,000 yuan or less on the basis of the seriousness of the tortious act.

According to the above cases, in judicial practice, the court will determine the amount of compensation on the basis of infringer’s infringement plot, subjective fault, the price of concert ticket, scale, the number of case-related songs, popularity, fee standards regulated by the Music Copyright Society of China, the use patterns of the works, the expenses to conduct investigation and entrust lawyers to represent a lawsuit paid by the Music Copyright Society of China and other factors.

XX

1.The artist brokerage contract signed by an artist and a brokerage company is a comprehensive commercial contract that contains multiple rights and obligations.It does not have the pure nature of entrustment,and does not belong to the entrusted legal relationship in Chinese law,nor can it apply the “unilateral arbitrary termination” rule peculiar to the entrusted legal relationship.The so-called right of arbitrary termination refers to the termination of the contract in accordance with the wishes of one party without the other party’s breach of contract.If the contract is arbitrarily terminated, the contract shall expire upon termination.

2.In an artist brokerage contract, thu lack of trust is not a legal reason for one party to have the right to rescind the contract.In the case where the two parties (artist and brokerage company) have irreconcilable contradictions, and the basis of trust for continued cooperation is obviously absent, the contract is then difficult to continue to perform, and the purpose of the contract is difficult to achieve, the court will rule that the contract should be terminated (without affecting the accountability for breach of contract).

Case 1: In 2010, L signed the Brokerage Contract with Company A.Company A was L’s sole agent.In 2012, L entrusted his lawyer to send a letter to Company A, notifying Company A of the cancellation of the Brokerage Contract on the grounds that Company A failed to improve L’s acting career, and then participated in other performing arts activities without authorization.Company A did not agree to terminate the contract, so L filed a lawsuit with the court, asking for an order to confirm that the Brokerage Contract had been terminated.Company A filed a counterclaim, demanding that L shall continue to perform the Brokerage Contract with Company A and compensate Company A for RMB 2,000,000 yuan.((2013) Shanghai Yi Zhong Min Yi (Min) Zhong Zi No.2086)

The court held that: the Brokerage Contract signed by L and Company A was not simply a commission contract under Contract Law.The disputed contract has the characteristics of commission contracts, labor contracts, contracts of commission agency and intermediation contracts at the same time.It is a comprehensive commercial contract which contains a variety of rights and obligations.According to the law, a legally established contract has legal binding force on both parties and may not be changed or terminated at will.Company A did not make any mistakes or breach the contract in the process of fulfilling the disputed contract.It arranged for L to participate in the production of films and television dramas as well as in commercial endorsement activities.It also conducted a comprehensive commercial promotion for L and settled the performance income and payed the remuneration to L according to the contract.Therefore, it has fully fulfilled its contractual obligations as agreed by both parties.L’s requirement to terminate the Brokerage Contract without reasons violated the principle of good faith, so he shall assume all the liability for the results.After 2012, L participated in performing arts activities without authorization, which violated the contract agreement between the two parties and actually caused losses to Company A.Company A has a reason to demand compensation from L.

In addition, considering that a Brokerage Contract can only be beneficial to both parties when it follows the principles of honesty, good faith,and fairness, L’s willingness to terminate the contract exacerbated the conf lict between the two parties who no longer held the trust required for continued cooperation.So the court ruled that the contract can be terminated from the day when the judgement takes into effect.The termination of the contract determined by the court is not the same concept as the termination of the contract requested by L, that is, the court’s judgment on the termination of the contract does not affect the accountability for breach of contract.

Case 2: Artist J signed an Artist Brokerage Contract with Company T,and the two parties agreed that Company T would be the exclusive agent of J to assist him in developing his acting career.Later, J asked the company to terminate the contract on the ground of its breach of contract.After J filed a lawsuit over the above-mentioned dispute, Company T filed another lawsuit against J’s father regarding its right of reputation.Therefore, J believed that he cannot continue to cooperate with the company that pushed his father to the defendant’s seat.The two parties have lost the trust basis for cooperation, and the contract can no longer be performed.((2016) Jing 03 Min Zhong No.13936)

The court held that: Although there were mistrusts between the two parties in the performance of the contract, there was no legal situation that may cause the contract to fail to perform or the purpose of the contract to be unachievable.Although the trust between the two parties is an important basis for performing the contract of this kind, the lack of trust is not a legal reason for the party to terminate the contract.For entertainers’ developing from newcomers to famous celebrities with high popularity and inf luence, in addition to their own abilities, the brokerage company plays a crucial role in cultivating, promoting and improving the popularity of the artist, which costs the brokerage company a large amount of time and money.If an artist is allowed to exercise his or her right to terminate the contract arbitrarily on the grounds of interpersonal dependence after becoming famous, it will put the agency in an unequal contract position and violate the basic principles of fairness and honesty, which may do harm to the sound development of the performing arts industry.

Case 3: W and the performing arts brokerage company H signed an Artist Brokerage Contract, in which it was agreed that Company H was the exclusive and full-service agent of the artist W, and the artist W shall not authorize another agent without permission or participate in performing arts activities not arranged by Company H.On the same day,artist W signed the participation guarantee for a large-scale idol talent show held by Company H.Later, Company H and Company L signed the brokerage transfer agreement regarding the show and the artist, transferring all the copyrights and income rights of Company H on the show and the brokerage rights of artist trainees to Company L, but artist W was unwilling to sign the Brokerage Transfer Agreement.Company H did not arrange an entertainment opportunity for artist W for two years after the recording of the program, and did not pay any remuneration.Therefore,after issuing the Letter of Termination, W participated in a publicity activity.Company H believed that W had breached the contract, but W supposed that he had terminated the contract.((2019) Jing 01 Min Zhong No.5450)

The court held that: The Artist Brokerage Contract is an agency contract signed between the artist and performing arts brokerage company.The main content is that the agency is responsible for packaging, cultivating artists and arranging performances as well as signing the contracts for the artists.The artist shall obey the working arrangements of the agency, and the company shall pay the remuneration to artists.The artist has the obligation not to sign similar brokerage contracts with other people and not to participate in performing arts and publicity activities without permission.The content of Artist Brokerage Contracts involves many laws such as Labor Law, Intellectual Property Law, etc.An artist brokerage contract synthesizes attributes of intermediation contracts, contracts of commission agency and labor contracts, and has more attributes of the commission contract, which is a contract with comprehensive features of various contracts.Thus, the unilateral right of rescinding the commission contract shall not be applied in isolation to such contracts;the termination of such contracts shall be judged in accordance with the relevant provisions of the termination of the contract in Contract Law.In this case, the disputed contract could not directly apply the “unilateral arbitrary termination” specific to the commission contract, and the contract did not stipulate that either party had the right to terminate the contract unilaterally.Therefore, although artist W sent a letter to terminate the contract on July 11, 2017, the letter-issuing act itself did not have the effect of contract termination.Company H’s reply on September 26 indicated that it did not agree with the termination, and the two parties failed to reach a consensus on the termination of the contract.Therefore,before the lawsuit, the Artist Brokerage Contract signed by the two parties was not terminated.

Picture 16 Summary of This Case

As mentioned above, the Artist Brokerage Contract is not simply a commission contract.It has strong interpersonal dependence and the trust relationship between a performing arts brokerage company and the artist is the basis for the continued performance of the contract.At the same time, considering that artist W has clearly stated that he will not continue to perform the contract, and that Company H has not arranged performing activities for W after 2016, and artist W has not received remuneration from Company H since the signing of the contract, the two parties have lost the basis for cooperation, so termination of the Artist Brokerage Contract is not improper.The court confirmed that the Artist Brokerage Contract involved in the case was terminated on the day that Company H received the counterclaim.However, according to the relevant agreements in the contract, artist W’s participation in the entertainment activities without permission during the performance of the contract has already constituted the breach of the contract.He shall bear corresponding liabilities for breaching contracts.

XXI

In a trial of cases about infringing the right of portrait, if the parties are unable to prove their economic losses or the illegal gains of the infringer, the people’s court will determine the amount of economic losses that the infringer shall compensate according to ways of infringement,and the time, scope, popularity of the actor as well as reasonable cost of seeking rights protection.

Case: Since 2016, Technology Company X has published a batch of articles and videos containing the portrait and name of a well-known artist L on its WeChat public account, Weibo, website, APP and several third-party platforms, the main content of which is about “cosmetic failure”.L believes that Company X’s actions infringed a series of civil rights and filed a lawsuit in the court.((2019) Jing 03 Min Zhong No.7758)

The court held that: Citizens enjoy the right of portrait.Therefore,anyone who does not obtain permission cannot use citizens’ portrait for the portraits of making profits.According to the case facts, Technology Company X published a large number of articles and videos containing L’s portrait and name on its WeChat public account, website, APP, Weibo and third-party websites.All of the above-mentioned publishing media carry commercial value.Technology Company X used L’s portrait without L’s consent, which constituted an infringement of L’s right of portrait.

Technology Company X used L’s portrait and name to publish many infringing articles and videos without authorization, which affected L’s image to a certain extent, and had a passive impact on L’s social appraisal.Therefore, the behavior of Technology Company X also infringed on L’s right of reputation.L’s reasonable expenses generated during the process of defending her rights shall also be defined as her economic losses.The court determined the amount of compensation that Technology Company X shall pay is RMB 250,000 yuan based on the time, scope, ways of infringement, the reputation of L and case-related evidence.

Picture 17

XXII

1.If a film or TV still image basically reflects the performer ’s facial image or the frontal face image of the performer, and the character image presented does not exceed the category of natural person portraits,having clear directivity and recognizability, the performer has the right to claim his or her personal right of portrait in the still to prevent anyone from using the still for making profits without permission.This kind of still image is a complex of dual rights, including both copyright and the right of portrait of the actor.The portrait rights of the performers in the stills cannot be denied even though the copyright of the stills is attributed to a third party.

2.The name of a well-known artist is different from that of the general public because of its social popularity, stronger commercial value and economic benefits.The use of a well-known artist’s name for commercial purposes infringes upon the artist’s right of name in accordance with the law.

Case: Company W released 34 mini games on its website, and later the portal site of the game was acquired by Company B as a whole.There were 113 stills of a famous artist C in the game, and C’s name was used as the game name in six games.C believed that the game websites operated by Company W and Company B had released a large number of web games which used C’s portrait and name as core content without permission and had obtained substantive economic benefits by infringing on C’s right of portrait and name.Company W and Company B objected to this,arguing that the game involved in the case only used C’s film and television stills, which did not infringe on C’s rights.((2019) Jing 01 Min Zhong No.7105)

The court held that: The right of portrait is a kind of specific personality right enjoyed by a natural person to the personal interests reflected in his portrait.It is a civil right whose content is the spiritual and material interests embodied in the portrait.Without the authorization of the portrait right holder, others shall not use the portrait right holder’s portrait for profit.Although the performing artist’s images contained in the film and television series cannot be simply equivalent to portraits, the stills not only carry a certain lens and artistic image of the film and television series, but also carry the performer’s character image.Therefore, film and television drama stills are a complex of dual rights, including both copyright and portrait rights of the actors themselves.The right of portrait and copyright contained in stills are an aggregation, not an absorption.The right of portrait enjoyed by the performers cannot be denied even when the photos are stills.If the still ref lects the performer’s facial image or the frontal facial image, which makes the character highly identif iable, it could be regarded as the performer’s portrait.

In this case, although most of the pictures that the case-related website used without authorization were film and television stills, they also were reproductions of the artist’s portrait.The figures they represented did not exceed the category of a natural person’s portrait.They still had clear directionality and recognizability.C has the right to claim her personal right of portrait in photos.The game involved in this case used C’s portrait image without authorization as a game element, infringing on C’s right of portrait.

The right of name refers to a civil right that citizens are entitled to decide, use and change their names independently and others are banned to interfere with, usurp and make false representation of personal names.The name of a well-known artist is different from that of the general public.Because of artists’ higher social popularity, their rights of name have higher commercial value and more economic benefits.In this case, the game website involved used the C’s name in 6 games without C’s permission.This method made use of the name of a well-known artist to promote the game, having a strong commercial purpose and infringing on C’s right of name.

In this case, the infringement process caused by the game involved is an ongoing status, starting with the release of the game and ending with the removal of the game.In this process, Company W and Company B were respectively responsible for the infringement which was caused during the release period and during the period after changing the operating entity.Therefore, the court determined that Company W and Company B committed joint infringement and ordered them to jointly compensate C for economic losses and reasonable expenses of more than RMB 520,000 yuan.

XXIII

Although public figures shall have a certain degree of tolerance for the attention of public opinion, supervision and even criticism, ordinary citizens shall still maintain a cautious and objective attitude when publicly disseminating information about public figures, and at the same time explain the legal source of the information, so as not to misrepresent the personality image of public figures.Fabricating and disseminating negative information of the public figure may constitute an infringement on the right of reputation.

Case 1: H has a book about the personal life of the famous director Z.It is published by Company Q.Z’s large portrait and striking signature constitute the main content of the cover of the book.Z’s personal life is the main content of the book, and it indicates that Z once had a “close relationship” with a female star during his marriage to another woman.After the book was launched, it immediately caused a sensation.Dozens of newspapers, websites and other media across the country have written a lot of text reports, video reports, reprints and serials of the book with titles such as “Z’s First Biography Revealing His Love Stories”, “Z Published a New Book to Tell the Love Story with XX”, etc.There were thousands of news readers, online readers and book buyers, and the amount of Internet clicks was huge.Z believed that H and Company Q used his personal portrait, forged his signature to publish the book without the authorization, and many contents which revealed Z’s privacy in the book were unverif ied by Z and other parties, thus, this book seriously violated Z’s right of portrait, name and reputation.((2010) Gao Min Zhong Zi No.411)

The court held that: With regard to personal life information, citizens have the right to decide whether or not and in what way to disclose information to the public.In the case of disclosing private life information to the public, the person concerned shall have the right to decide whether to appear in front of the public in any manner in order to protect his or her personality from distortion and ugliness.Although compared to ordinary citizens, public figures bear more social responsibilities and obligations, they will inevitably receive the attention, supervision and even criticism of public opinion, which may affect their rights negatively.Although public figures should have a certain degree of tolerance for the attention of public opinion, supervision and even criticism, necessary protection should still be given to their private information.Whether social media or ordinary citizens, one should still be cautious and objective publicly when disseminating relevant information of public figures, and at the same time, the legal source of information should be explained to avoid the misrepresentation of the personal image of public figures.

The cover design of the book in question used Z’s portrait of and was supplemented by Z’s signature, which may objectively leave an impression on the public that this book was published with Z’s authorization.In addition, the contents of Z’s emotional part in the book was written and narrated in the form of “he or Z said”, without the source of the materials, which undoubtedly deepened the reader’s misunderstanding.Therefore, the improper behavior of H and Company Q interfered with Z’s freedom of expression of his emotional life, violated Z’s expectations of good social evaluation based on his own conduct, and inevitably caused the public to believe a distorted understanding of his personality and make negative evaluations about Z.

Case 2: Reporter T successively published two articles titled, “Associate Professor of University B Was Expelled from the Party” and “Detailed Truth of the Relationship between the Associate Professor of University B and Female Foreign Students”.The articles reported that the associate professor in the school of international relations of University B, who had an abnormal relationship with a Singaporean female student, was expelled from the party and his teaching post and teaching qualification were revoked.In the latter article, without giving strong evidence,T speculated that W was the female party in the above-mentioned incident, and added a tag containing the Chinese name of “W” to guide netizens to forward it on a large scale.After W sued over the incident, the reporter pleaded that W belongs to the category of a public figure and her personality right should be limited.In response to the second article,the reporter advocated that it was only reproduced, which belongs to free speech.((2017) Jing 01 Min Zhong No.2722)

The court held that: Although the reputation right of public figures is limited to some extent, it is not completely unprotected.The contents of the second article are obviously inadequate and unjust in the factual speculation and qualitative evaluation, which may damage W’s reputation as the heroine of the incident.When T, who has many fans, reposted this article, not only did he not fulfill his due diligence based on the fact that the reposted article may have a huge negative effect on W’s reputation, but also added the label “W”, which makes the directivity much clearer.The title “Detailed Truth” he added is more misleading.T had subjective faults and his behaviors objectively caused an inevitable reduction in W’s social evaluation in because of the spread of this article and the damage to her reputation.

XXIV

1.Issuing improper comments may infringe upon others’ right of reputation.Under this kind of disputes, to determine whether infringement occurs, firstly, it is necessary to determine whether the comments have obvious directivity.Secondly, it is necessary to determine whether the content of the speech objectively caused harm to others.The aforementioned “directivity” judgment includes at least two dimensions.The first is the direction expressed by the written comments, which mainly judges whether the comments are “special” or “general”, “explicit” or “implicit”.The second is the orientation of the audience’s understanding after receiving the expression, which mainly determines whether the received speech information has understanding certainty or correspondence.

2.Improper reprinting of Internet users may also constitute a reputational infringement.When the court determines whether the reprinting network information by Internet users constitutes an infringement, the following factors will be considered: (1) whether the reprinted subject has undertaken the obligation of due diligence to its nature and scope of inf luence; (2) the degree of infringement on the personal rights of others;(3) the possibility of causing serious discrepancies with the content and misleading the public by substantial changes made to the information such as adding or modifying article titles.

Case 1: Around 18 : 28 on January 28, 2015, the entertainment channel operated by Company W published the article entitled “A Hundred Male Stars Have Been Suspected of Prostitute and Left the Case Record”.The author used letters to refer to characters in the article.As soon as this article was published, many people speculated that the letter H refers to the male star Huo.Two days later, J made a post on Weibo, and wrote the star names one by one for each of the letters in the article, among which,there was “H = Huo”.At the same time, several excerpted pictures of the original article were uploaded.Huo believed that Company W and J infringed upon his reputation rights jointly.((2017) Jing 01 Min Zhong No.6460)

The court held that: To determine whether Company W infringed reputation rights, it should first determine whether the articles involved are clearly directed, so that the relevant public can associate H with Huo after reading the article.Secondly, it should be determined whether the articles involved caused an objective decline in Huo’s reputation.(1)Whether the company’s article pointed to Huo.Judging the directivity of written comments includes at least two dimensions: the first is the direction expressed by the written comments, which mainly judges whether the comments are “special” or “general”, “explicit” or “implicit”.The second is the orientation of the audience’s understanding after receiving the expression, which mainly determines whether the received speech information has understanding certainty or correspondence.If the article is“implicit”, it is necessary to further examine the personal characteristics mentioned in the comments, and judge whether these “implicated” personal characteristics are recognizable and significant enough to make a third person aware that the dissemination of the “implied signs” has a direct or high degree of correspondence with Huo, so that H can directly be associated with Huo.If both conditions are achieved, then it should be determined that the article points to Huo.In this case, it can be seen from the text in the case that the “one” actor’s unique expression and the corresponding facts of the statement indicate that the facts stated are not abstract and general descriptions, but specific facts about a particular actor.In addition, text in the case provided characteristic elements of specific individuals, such as the initial of the last name, place of origin, gender, occupational attributes, performing a number of costume dramas as the art feature and all the dramas being shot in a photography base.They are all “specifying” and “implicitly” referring to a specific individual, rather than ref lecting the general living conditions of the actors in the film and television base of Hengdian in an abstract way, as W Company argues, without specific directions.

(2) Whether the article constituted a defamation infringement of the right of reputation.The dissemination of improper comments is the main form of infringing on citizens’ right of reputation, and the impropriety of speech is mainly ref lected in the reprehensible nature of speech content.If disseminating harmful, false facts to a third person is not conducive to the reputation of a specific person or group of people, or making inappropriate comments against the reputation of a specific person or group of people based on false facts transmitted by others, sufficient to cause the social evaluation comments of that specific person or group of people to be worse, it can be regarded as defamation, and thus constitutes a violation of others’ right of reputation.In this case, the text in the case issued by Company W was a description of the improper sexual relationship between Huo and a female.As the publisher of the text in question, Company W could not prove the facts in the article it disseminated.Therefore, Company W should bear the consequences of not being able to provide evidence, and the content of the text involved in the case was therefore regarded as a false fact.Since this can be criticized by social morality and mainstream values, it is enough to damage the reputation of the parties and thus reduce social evaluation.Misinformation will have obvious defamatory significance.

(3) Whether J constituted joint infringement.The court considers the following factors to determine the fault and extent of network users’behavior when reprinting network information: ① due care undertaken by the person or group reprinting the information in accordance with its nature and scope of inf luence;② the apparent degree of infringement on the personal rights of others;③ the possibility of causing serious discrepancies with the content and misleading the public by substantial changes made to the information such as adding or modifying article titles.In this case, J, as a real-name authenticated online user with nearly 200,000 followers, has a large influence in the online community, and should assume a higher duty of attention in accordance with his identity and scope of inf luence.Secondly, the excerpts reproduced by J relate the fact that there is an improper relationship between others, which has a significant impact on personal reputation.Once the untruth spreads, it has obvious defamatory significance, and it should be spread more cautiously.Furthermore, J not only failed to fulfill the corresponding duty of attention when reprinting excerpts, but also further added explanatory notes to the reprinted information without factual basis, further expanding the spread of false facts.

XXV

1.The core of the right of reputation is social evaluation.Only when the insults and defamatory acts performed by the perpetrators affect the public’s evaluation of the victim can it constitute a violation of reputation.

2.The parties who bring the lawsuit concerning the right of reputation shall provide evidence to prove whether their social evaluation is damaged.If there is no evidence or the evidence is not sufficient to prove that the relevant social evaluation has been lowered due to infringement,the party shall bear the adverse consequences.

Case 1: Reporter O of a newspaper investigated an artist’s establishment of a studio.Later, another newspaper reporter Z reposted on his Sina Weibo account the negative information that O forcibly asked the artist for advertising fees when interviewing the studio.After learning about Z’s behavior, O brought Z to court claiming that the information released were false statements which caused damage to his reputation.((2015)Xi Zhong Min Gao Zhong Zi No.00498）

The court held that: The following factors determine whether an action constitutes infringement of the right of reputation: whether there is actual damage to the victim’s reputation; whether the infringer violated the law; whether there is a causal relationship between the illegal acts and the consequences of the damage; and whether the infringer has subjective fault.The parties are responsible for providing evidence to prove the facts on which their claims are based.If there is no evidence or the evidence is not sufficient to prove the factual claims of the parties, the party bearing the burden of proof shall bear the adverse consequences.

In this case, the main point of judging whether O’s reputation right has been violated by Z is whether O can prove that his social evaluation has been reduced due to Z’s forwarding behavior.And in this case, after Z reposted someone else’s blog in his personal account, he generated 5 comments and 11 forwards.There were not a large number of followers,reposts or negative comments, and Z deleted them the next day.In the first and second trials, O had not submitted sufficient valid evidence to the court for his factual claim that his reputation had been damaged due to Z’s forwarding action and should bear the corresponding adverse consequences.

Case 2: L once acted as an agent in the investigation stage of a case.The newspaper agency A reposted a blog post on a social platform in response to the case stating that “the lawyer’s request to transfer the client from criminal detention to administrative detention has been approved”.L believes that he has never requested the police to transfer the party from “criminal detention” to “administrative detention”.The fabrication of this false information by newspaper agency A is enough to cause major misunderstandings for the public, that is, as an attorney, L believes that the behavior of the party in the case has been publicly recognized as illegal.L maintains that the Weibo content forwarded by the newspaper agency caused public suspicion of his professional conduct and constituted a violation of his right to reputation.Newspaper agency A claimed that it did not fabricate false information.This information originally came from newspaper B, and was later reprinted by many domestic websites; it maintains that it is just a reprinting media.(Note: As of the time of the trial, the Weibo content was reposted 208 times and 90 comments were made.) ((2014)Yi Zhong Min Zhong Zi No.06844)

The court held that: The following factors determine whether an action constitutes infringement of the right of reputation: whether there is actual damage to the victim’s reputation; whether the infringer violated the law; whether there is a causal relationship between the illegal acts and the consequences of the damage; and whether the infringer has subjective fault.When newspaper agency A published the Weibo post involved in this case, it marked the source of the reprinted article and added the original link address at the end of the article; there was no insulting language in the Weibo post forwarded by newspaper agency A.Moreover, there is no defamation, leakage of privacy or any other methods to damage L’s reputation.L claimed that the post reposted by newspaper agency A had disseminated false information, but he could not confirm that the content of the post was false, nor could he confirm that the content of the post reposted by newspaper agency A caused public suspicion of his professional conduct and reduced his social evaluation.In summary, Weibo repost involved in this case by newspaper agency A did not constitute an infringement of L’s reputation.

XXVI

1.Artists may choose to sue an information network service provider together with the users of the network platform when facing an infringement by an online platform user, and urge the information network service provider to perform the obligation to disclose the personal information of the infringer and the information of pageviews of the case-related article during the litigation process.

2.In the case of disputes over right of reputation, the specific amount of compensation for mental damage needs to be determined by the artist’s popularity and public image, the fault of the tort feasor, the mode of transmission, the nature of defamation and insult, the scope of the infringement and the circumstances of regret and apology.

Case: On the social network platform operated by the Company W,the online user Y posted a blog post about the negative news of the artist H.Once the blog post was published, it caused a large number of netizens to forward, comment and hit the like button.H believed that its content blatantly slandered that he had huge debts, which resulted in serious damage to this reputation, so he brought Company W and Y to court, arguing that Y should pay compensation for mental damage.Company W argued that it had provided the registration information of Y in accordance with the court’s order and fulfilled the corresponding legal obligations.Y acknowledged that he reposted the article involved in the case, but argued that the content of the article was not from the original but from other websites, and the content link has been deleted, which has relatively little impact.((2016) Jing 0108 Min Chu No.12019)

The court held that: In response to the question of whether Company W is liable for infringement.Generally speaking, network service providers may not be liable for infringement if they take necessary measures such as deletion, blocking, and disconnection in a timely manner after receiving notification of infringement of platform content.The original intention of choosing to sue the network service provider was not to make the network platform take responsibility, but to enable the network service provider to fulfill its obligations of disclosing the infringer’s account information.In this case, after Company W fulfilled its obligation to disclose the personal information of the infringing user and the information related to Weibo views in the litigation process, H did not file any other lawsuits against Company W.

Determining the specific amount of compensation for mental damages needs to take into account the artist’s popularity and public image,the tort feasor’s fault, the method of transmission, the nature of defamation and insult, the scope of the infringement, and conditions that whether the tort feasor clarif ies the facts and makes a private apology or not.Although Y claimed that her article was reposted on Weibo only 178 times, as of the time the registered user account was finally deleted, it had been read 138,568 times.Secondly, the article was reprinted by many media outlets, forming a wide amount of unfavorable dissemination on the Internet, which caused H’s original good impression on the public to be damaged; it caused direct damage to image, and it is bound to cause serious mental damage to H.H’s lawsuit for Y to compensate for mental damage reliefis well-supported by the law .

XXVⅡ

The “truth” required by news reports shall belong to news truth, and news truth is different from objective truth.When the news media has a reasonable and reliable source and has fulfilled its corresponding verification obligations, then even if the reported content deviates from the objective facts, the news media should not be liable for infringement.

Case: Newspaper A published a report, mainly describing the dispute between B (a commercial plaza) and its tenants, including B’s request for merchants to pay rent, only being able to see contract details after sighing, and fake brands in B’s market.The newspaper A quoted in detail in the article the statements of the merchants and B in contract disputes.B believed that the content of the report was seriously untrue and filed a lawsuit, asking the newspaper A to stop the infringement and publicly apologize.((2018) Jing 03 Min Zhong No.4882)

The court held that: News truth is different from objective truth.When the news media has a reasonable and reliable source and has fulfilled its corresponding verification obligations, then even if the reported content deviates from the objective facts, it should not be liable for infringement.In this case, some inaccurate contents in the article are details, and the basic contents reported by the article involved are not false.According to the evidence, the newspaper A has fulfilled the corresponding verification obligation, and its contents are not only the “one party’s word” of the merchants.The article also contains the response of the market party and does not favor one side over the other.The public will not have an unreal and unreasonable evaluation of the market B due to this article, which might have led to a decline in the market’s social evaluation.Therefore, the article did not damage the reputation of the market B.

XXVⅢ

1.Generally speaking, speech can be divided into “statement of fact”and “expression of opinion”.The criteria for these two situations are different when determining whether speech violates the “right of reputation”.The statement of facts should conform to the objective situation and should not be intentionally distorted or fabricated, otherwise there may be a possibility of defamation; the expression of opinions shall be objective and fair, and derogatory words shall not be used at will, otherwise it may constitute an insult.

2.The media has the right to conduct proper supervision of public opinion, and has the right to comment and even criticize popular social issues.Speeches the media has made should be legally protected as long as they do not break laws.However, when publishing news reports and documentary works, the media shall be real, accurate, and fair.If the media exceeds the boundaries of its rights, for example, by insulting or slandering someone due to intentional or negligent actions, which is serious enough to lower the social evaluation of others, it will cause an infringement of the someone’s reputation.

Case 1: Company Y has organized the Golden Copier Award Selection event on a social platform.The “Golden Copier Award” is sarcastic and intended to satirize that the winner’s work is a plagiarism.In the selection process, Company Y directly took G as one of the candidates for selection, and repeatedly published blog posts about G’s plagiarism.However, G believes that there is no plagiarism, and the behavior of Company Y makes the relevant public have a negative impression of him.Therefore, G sued to the court and claimed that Company Y violated her right of reputation.Company Y claims that it is a review of objective facts.The original purpose of holding the selection event was not to award prizes,but to comment, explain and make suggestions about a certain phenomenon in society.((2019) Jing 01 Min Zhong No.6726)

The court held that: Company Y violated G’s right of reputation.Infringement of reputation means making a derogatory evaluation of someone’s morality, prestige or credit.The following factors determine whether an action constitutes infringement of the right of reputation:whether there is actual damage to the victim’s reputation; whether the infringer violated the law; whether there is a causal relationship between the illegal acts and the consequences of the damage; and whether the infringer has subjective fault.

Specifically, the determination of whether speech constitutes an infringement of the right to reputation varies according to the two situations of “statement of fact” and “expression of opinion”.The former refers to a certain specific process or state of affairs that is stated in the past or present, and the latter refers to expressing one’s own opinion or position on things.When presenting the facts, the content should be basically in line with the objective situation, and should not be intentionally distorted or fabricated, otherwise there may be a possibility of defamation; when expressing opinions, it should be generally objective and fair, discuss the matter, and should not arbitrarily use insulting or derogatory words to carry out personal attacks, otherwise there may be an insult.The media has the right to conduct proper supervision of public opinion.Speeches the media has made should be legally protected as long as they do not break laws.However, when publishing news reports and documentary works, the media shall be real, accurate, and fair.If the media exceeds the boundaries of its rights, for example, by insulting or slandering someone due to intentional or negligent actions, which is serious enough to lower the social evaluation of others, it will cause an infringement of that person’s reputation.

In this case, Company Y failed to provide evidence that can prove whether G indeed plagiarized another’s work, and there was no final conclusion about the copyright ownership of the work.Under this circumstance, Company Y can discuss and make comments on the matter.However, carrying out personal attacks by using insulting and derogatory language causally constitutes an insult to G’s personality.Furthermore,in the case where it is uncertain whether G infringed the copyright of others, the remarks of G’s plagiarism made by Company Y in this regard may also infringe G’s reputation.

Case 2: A certain journal published an article entitled “We Were Scammed on a Dating Website” and introduced the article as a cover story on the cover of the journal.The article uses news surveys to describe the frequent occurrence of fraud on a Chinese dating website S, causing huge losses to many members.The operating company of website S believed that the article had damaged the reputation of the company and filed a lawsuit, asking the company publishing this journal to stop infringement, restore reputation, and compensate for losses.((2015) Yi Zhong Min Zhong Zi No.06466)

The court held that: News media must ensure the authenticity of news reports, adhere to the principles of neutrality and objectivity, and try to report views from different positions.Although part of the content of the article in the journal quotes other reports or other people’s comments,from the perspective of the organization of the news materials, the article concentratedly invoked the negative evaluation of website S.Views that lack the opposite position may lead readers to have a prejudice and inf luence the independent judgment of the relevant public.From the title to the content, the article involved has not only negatively inclined reports,but also lacks the opposite standpoint.The terms are obviously derogatory and the directions are clear, which inevitably leads readers to draw a negative conclusion, affects public perception and evaluation, and causes the reputation of website S to be damaged.It should be considered as infringing the reputation of the operating company of website S.

XXIX

According to the Tort Law and Regulation on the Protection of the Right of Information Network Dissemination, the “safe haven principle” means that, in general, if a network service provider only provides network services such as automatic access, automatic transmission, information storage space, search, linking, and file sharing technology, when a network user commits an infringement by using a network service, the network service provider may be exempted from liability after taking necessary measures such as deleting, blocking, and disconnecting the link in a timely manner after receiving notification from the infringed person in accordance with the law.

However, if an online service provider provides network users with an unauthorized work which can be used as a background music for users to perform, and users can record, upload, and share the performing videos through the APP, or if it actually participates in the infringement of the work (such as failure to perform the review obligation, acting as the infringer itself, etc.), the “safe harbor principle” is not applicable and it may infringe the copyright owner’s right of information network dissemination.

Case 1: Company A is the operator of the mobile App “X show”.Through this application software, network users can choose their favorite music works as background music to perform, record, upload and share their performing videos.The Music Copyright Society of China was authorized as the right owner of a musical work and found that there are many users exploiting this work on the APP without permission.Therefore, the Music Copyright Society of China claimed that Company A’s act of providing users with the work involved in the case to organize public performances through this APP without its permission constituted an infringement.Company A argued that it was a music platform and had not received a notice of infringement from the Music Copyright Society of China.The safe harbor principle should be applied to this case so the corresponding legal liability should be relieved.Even if the court determined that the liability cannot be exempted, the amount of economic loss and reasonable expense claimed by the Music Copyright Society of China was unreasonable not only because the work involved was not popular, but also because the musical work represented on the APP was a fragment and the Music Copyright Society of China did not submit any evidence to prove the loss it suffered as well as reasonable expense.((2017) Jing 0105 Min Chu No.35797)

The court held that: Company A provided users with the unauthorized case-related musical work, which internet users could then use as background music to perform, record, upload, and share as performing videos through the APP.Meanwhile, Company A provided network users videos which contained these case-related musical works.These acts violated the copyright owner’s right of information network dissemination and Company A shall assume the legal liability for compensating the loss.The court ruled that Company A shall compensate the Music Copyright Society of China for the economic loss and reasonable expenses,altogether RMB 6,000 yuan, based on Company A’s subjective fault and the nature and seriousness of the tortious acts.

Case 2: Z and X are the songwriters of the musical work W.They have complete copyrights of this work.Company D is the developer of the game Q, in which W was once used as background music.At the same time, it can be found that after searching Q through the search engine S, the interface of game Q appeared and can be directly entered.

Z and X believed that Company D had not obtained authorization in advance, and the unauthorized use of the song “W” constituted an infringement of the music copyright.At the same time, they advocated that Company S as the case-related game promotion platform shall bear joint and several responsibilities.((2017) Jing 73 Min Zhong No.2225)

The court held that: Company D used the song W as background music in game Q’s login interface without permission, infringing the right of information network dissemination that Z and X enjoyed of the work.

Regarding whether Company S should be jointly and severally liable for the infringement as the game promotion platform involved in the case, the court held that according to the evidence, Company S cooperated with Company D to promote game Q on its search engine platform.The above-mentioned song was provided by Company D with Company S then placing the song on the game login page.After the cooperation ended, Company S did not delete the songs involved.The game involving the infringing music work actually exists on the website operated by Company S, and Company S participated in the promotion of the game.Therefore, Company S cannot be exempted from liability by the “safe harbor principle” and should bear liability for infringement.In summary, in the cooperation and promotion of the game involved in the case,Company S and Company D’s unauthorized use of Z and X’s copyrighted song infringed the right of information network dissemination, and they should bear joint and several liability for their infringement.Regarding the specific amount of economic loss, the court took into account the specific factors such as the use of the work, the scope of dissemination,the scale of the infringing website to decide the compensation amount of over RMB 40,000 yuan that Company D and Company S need to pay for X and Z’s economic loss and reasonable expenses.

Picture 18

XXX

Information network dissemination behavior refers to the placing of works on the information network, namely the behavior of providing“works”.If the Internet service provider only provides the network address of the link to the work without involving the transmission of the work, and the link itself will not actually allow the user to obtain the work, it will not constitute a direct infringement of the right of information network dissemination.

Case: S is a well-known children’s author.She published a book in 2006.S found later that Company W illegally provided its readers with an online reading service of S’s book on its website at the price of RMB 1.2 yuan / copy, and she believed that Company W infringed her copyright and she filed a lawsuit.((2017) Zhe 8601 Min Chu No.1014)

The court found that: (1) Company W provides internet promotion services to Company M through content linking according to its cooperation agreement with Company M, and promotes the content and link address provided by Company M.(2) Company W clearly indicated“the source of the content is from Company M” on the relevant page showing the work involved in the case, and made a statement on the payment method indicating that Company M received the full revenue of the work involved in the case.(3) According to the use of a technical means of packet analyzing in court, it was confirmed that the book was stored in a web server.The book provided by Company W on its website and its client machines were read directly from the web server.

Finally, the court determined that Company W just provided the link in this case, and was not involved in the transmission of the work.Company W only provided the network address of the work.Whether the user can obtain the work or not depends on the linked website.The link itself did not allow the user to actually obtain the work.The act of disseminating works to the public over information networks refers to the act of placing works in information networks, and specifically refers to the behavior of providing works.Therefore, this act of Company W did not constitute a direct infringement on the right of information network dissemination.

XXXI

In general, if a network service provider only provides network services such as automatic access, automatic transmission, information storage space, search, linking, and file sharing technologies, the network service provider can be exempted from liability if it takes necessary measures such as deletion, blocking, and disconnection in a timely manner after receiving the notice of the infringed person when a network user commits an infringement by using the network service (the “safe harbor principle”).However, if the webcast platform agrees with the anchor to enjoy the intellectual property rights of all videos, and the video is stored in the server of the platform and transmitted to the public under its control,even if the provider deleted the relevant videos in time after learning that the videos have infringing contents, this provider’s liability shall not be relieved.

Case: Network anchor F held an online livestream on the platform D and she played about one-third of a popular song in this live.After the live broadcast, the live video was saved by the anchor on the live platform D.Viewers can log in to the live platform D to watch and share this video anytime and anywhere.The Music Copyright society of China, the legal right owner authorized by the song’s original author, brought Company D to court.During the trial, the Music Copyright Society of China made it clear that the infringement was not the act F did in the livestream, but the act of uploading the lives video to the live platform D for people to watch and share after the live broadcast.Company D shall bear the corresponding liability for infringing the Music Copyright Society of China’s right of information network dissemination.((2019) Jing 73 Min Zhong No.1384)

The court held that: The video involved in the case contains the song that has been played without the permission of the Music Copyright Society of China.The public can log in to the live platform to browse,watch, and share this video at the any time and at any place, which is a violation of the right of information network dissemination.First, according to the Live Broadcasting Agreement signed by Company D and the anchor F, the two parties agreed that all the intellectual property rights and ownership and related interests of works produced by the anchor F during the live broadcast belong to Company D.Although the anchor is the producer and uploader of the video, the anchor does not enjoy the intellectual property rights and ownership of these videos, and according to the principle of consistent rights and obligations, the anchor shall not bear infringement liability for the infringing content in the video.Correspondingly, since Company D is the owner of these works and enjoys relevant rights and interests, it shall naturally bear corresponding responsibility for any legal consequence arising from the works.

Second, in general, if a network service provider only provides network services such as automatic access, automatic transmission, information storage space, search, linking, and file sharing technologies, the network service provider can be exempted from liability if it takes necessary measures such as deletion, blocking, and disconnection in a timely manner after receiving the notice of the infringed person when a network user commits an infringement by using the network service (the “safe harbor principle”) according to Tort Law.Company D is not only the provider of network services, but also the owner and provider of audiovisual products on the platform, enjoying the benefits brought by these works.In this case, although it deleted the video in a timely manner after knowing that the video involved in the case was infringing, Company D cannot be exempted from responsibility.

Third, the existence of a large number of users will also bring huge impacts and benefits.Live broadcast platforms cannot enjoy benefits while at the same time avoiding their obligations of review and supervision.They cannot allow infringements to occur and refuse to perform the obligations that accompany their rights, even for such a reason as the difficulty of monitoring a large amount of live broadcasts.Therefore, Company D cannot invoke the “principle of safe harbor” to relieve its liability.

Picture 19 Summary of This Case

XXXII

1.As an Internet service platform provider, the webcast platform shall establish pre- and post-processing mechanisms such as guidelines for copyright protection complaints, complaint functions and deletion notification, etc., to timely handle copyright infringement activities on the platform.

2.If the live webcast platform is at fault for the infringing works uploaded by the user, and after learning of the infringement, fails to take reasonable and effective measures to stop the infringement in time, the act will constitute contributory infringement.

3.If the live webcast platform does not have subjective fault beforehand, and objectively takes proper remedial measures afterwards, the act will not constitute infringement.

Case 1: The online series T is adapted from N’s novel of the same name.Company A was authorized by the rights owner of the series to have the exclusive rights of network on-demand, live broadcast and carousel.Webcast software Y is a software for watching live videos developed by Company D.During the popular broadcast of T, Company A found that while only paying users can watch the episodes on its own platform, after logging in to the software Y and searching for “T” there were dozens of anchors broadcasting the related episodes of the series.The nicknames of each anchor’s channel are all composed of the name of T, “Complete Watch”, “Complete”, “HD live to the End” and so on,based on which, Company A believed that Company D had played the online drama T on its software Y without authorization has infringed its copyright.Company D has denied its infringement.((2016) Jing 0108 Min Chu No.6679)

The court held that: Company D is the operator of an Internet live broadcast service which is at fault for the infringement and shall bear corresponding infringement liability if the relevant anchors commit infringement.The anchors in the webcast software Y played live series T without getting the permission from the rights owner of the series,which constitutes a direct infringement.Considering that T has a high reputation while Company D has not restricted the content broadcast by anchors, that the nickname of the series T being live broadcast is obvious, and that Company D did not specify the method for complaint in the software, and other factors, Company D should have known that the relevant anchors broadcast Company A’s corresponding drama content of the TV drama provided to the paying members.However, it did not take reasonable and effective measures in a timely manner to stop the infringement, which infringed other rights under Company A’s copyrights related to the live broadcast of the play, therefore Company D was faulty and committed the contributory infringement.

Case 2: Company A, as the legal right owner of the series T, found that Company H broadcasting the popular TV series T on the company’s website, so it filed a lawsuit with the court and asked Company H to immediately stop broadcasting and compensate for the loss.((2017) Yue 73 Min Zhong No.2134)

The court held that: The online platform provided by Company H was a webcast platform.Considering the liveliness and randomness of the webcast, it was difficult for the platform provider to conduct prior supervision.Moreover, the evidence submitted by Company H shows that the number of registered users of the webcast platform involved in the case is huge.Therefore, except for content that clearly violates the prohibitive laws of the state which can be partially filtered by adding black words beforehand, objectively it is impossible for Company H to conduct instant supervision or real-time review on all users.In addition, as a network service platform provider, Company H has clearly reminded the platform users on the platform that they need to respect the intellectual property rights of others and has informed them of the legal liability for suspected infringement.At the same time, it has also provided guidelines for copyright protection complaints and has set up complaint functions on the platform.Furthermore, after receiving notice of infringement,Company H actively dealt with the anchor involved in the case and added black words to the keyword T, which was the proper way to deal with the infringement.Company H did not receive economic benefits from the live broadcast involved.

The infringing webcast users involved in the case performed infringement by using the screen capture technology of the webcast platform.As a technical service provider, Company H cannot foresee the content that may be infringed or the infringing method that the infringer may adopt.Therefore, taking the work involved in the case, a key film and television work, as a reason to believe that Company H should be aware that the webcast platform provided by it may be infringing will improperly increase the company’s review obligation.

In summary, Company H had no fault beforehand in subjective terms,and objectively adopted remedial measures after the infringement,which shall not be deemed as constituting an infringement.