Beijing Internet Court
Digital Copyright
Ten Major Typical Cases

Case 1

Short Video Copyright Case: Whether a Short Video is Original Has Nothing to Do with Video Length

— Beijing XX Science and Technology Company v. XX Online Network Technology (Beijing) Company et al. Concerning Dispute over Infringement of the Right to Communicate Works Through Information Network 

[Typical Significance]

A short video that can reflect the creator’s individual expression and bring spiritual enjoyment to the audience is original and constitutes a work. This case boldly affirms new creation modes and creation behaviors in the Internet environment, passes on the value orientation of advocating and encouraging the creation and communication of works with positive energy, and is conducive to meeting diversified cultural needs of the public. It was selected into Top Ten Intellectual Property Cases in Chinese Courts and Top Ten Media Law Cases in China in 2018. The judicial advice sent along with the case won the first prize of the Beijing Court Excellent Judicial Advice and was included in the Opinions on Strengthening Copyright Protection issued by the Beijing Municipal Bureau of Copyright. The judgment document took the first prize in the Online Mutual Evaluation and Selection Campaign of Excellent Judgment Documents of Beijing Courts and the Fourth National Intellectual Property Excellent Judgment Document Selection.

[Case Facts]

The plaintiff is the operator of short video platform A, and the defendant is the operator of short video platform B. To commemorate the 10th anniversary of the Wenchuan Earthquake, Black Face V, a verified user of video platform A, made and released a 13-second commemorative short video “I Want to Say to You” on video platform A with given materials in response to the call of Party media platforms. The short video involved was shared by other users of platform A, and there was the watermark of platform A and “ID: 145651081” on the playing page. Short video mobile app B disseminated the short video involved without showing the watermark. The plaintiff “notified” the defendant by email, but could not prove that the above email was sent successfully or received a reply. Afterwards, the plaintiff sent a paper notice to the defendant. The defendant deleted the short video involved. The plaintiff asserted that the short video “I Want to Say to You” should be protected by the copyright law as a work and that the defendant who disseminated the short video and erased the watermark infringed its right of communication through information network, and requested the defendant stop the infringement, eliminate the impact, and pay RMB 1.05 million in compensation for its losses.

[Key Points of Adjudication]

The originality of short videos is not necessarily related to their length.

With given themes and materials, the creation of short videos is subject to certain limitations and is quite difficult. Although the short video involved was created based on existing materials and lasts only 13 seconds, its arrangement and selection of the materials and the effect presented to the audience are completely different from other users’ short videos, reflecting the individual expression of the creator. The short video involved brings the audience the comfort of rebirth and the power to move forward. Such spiritual enjoyment it brings to the audience also embodies the originality of the short video. Therefore, the short video involved constitutes a work created in a method analogous to filmmaking.

Legal attribute of the application of short video watermarking

Short video watermarking is not a “technical measure” in the sense of copyright law. Rather, watermarks have the attribute of indicating a certain identity: a user’s ID watermark indicates the information of the creator, and is thus better identified as right management information; platform watermarks display the information of the disseminator, which has become an industry practice in the short video industry.

Application of “notification-deletion” rule

When a right holder discovers an infringement, he shall, in an honest and sincere manner, send a notice of rights protection in the most economical and direct way. The notice of rights protection sent by the plaintiff not according to the information published by the defendant shall not constitute a valid notice. The defendant, as a network service provider that provides information storage space, has no subjective faults in respect of short video mobile app B users’ provision of the short video “I Want to Say to You” and fulfilled the “notification-deletion” obligation after receiving a valid notice from the plaintiff later. Hence the defendant did not commit an infringement.

[Adjudication Result]

All the plaintiff’s claims were dismissed. Neither party filed an appeal.

Case 2

Case of Film Illustration with Pictures: “Film Illustration with Pictures” Which Does Not Constitute Fair Use Constitutes Infringement

— XX Network Technology (Beijing) Company v. Shenzhen XX Technology Company Concerning Infringement of Right of Information Network Dissemination of Works 

[Typical Significance]

This is the first case regarding the infringement committed through “film illustration with pictures” in China. The judgment of the case makes it clear that the act of making a collection of pictures with screenshots of others’ film-like works, essentially displaying such content as main scenes and specific plots, goes beyond what’s necessary for introduction and comment, actually has the effect of replacing the original works, and therefore does not constitute fair use. By defining the boundaries of the fair use of film and television works, the adjudication of the case cracks down on infringement by covert, technical means in disguise of innovation, protecting the source of innovation drive and facilitating the healthy development of the film and television industry. The case was rated as an excellent document in the Online Mutual Evaluation and Selection Campaign of Excellent Judgment Documents of Beijing Courts and was selected among the top ten entertainment-related legal cases of the year, the top ten hot copyright cases of AIPPI China and excellent case studies in the national court system.

[Case Facts]

The plaintiff is the owner of the right of information network dissemination in the television drama Eternal Love. The defendant is an app and website operator. The website involved is an online software of “film illustration with pictures”. Its homepage says, “Appreciate a good film in ten minutes”. There is a picture collection of the first episode of Eternal Love on the website. The collection contains a total of 382 pictures, which are screenshots of the above drama. The content of the pictures covers the main scenes of the above-said episode. The texts at the bottom of the alleged infringing pictures were added by the creator of the picture collection. Viewers can choose an automatic display at the speed of five or eight seconds a picture or a manual display by clicking the next picture on the app involved.

The plaintiff asserted that the content of the picture collection basically covers the main scenes and entire plot of the drama involved, infringing its right of information network dissemination, and requested the defendant pay a total of RMB 500,000 yuan in compensation for its economic losses and reasonable expenses. The defendant argued that screenshots are used in the picture collection instead of videos, which is fair use and does not constitute infringement.

[Key Points of Adjudication]

Whether making a picture collection with the screenshots of a filmlike work is use of the work.

Concerning the provision of works to the public stipulated in the right of information network dissemination, the work here should not be understood as the whole work because the copyright law protects the expression of originality. As long as any part of a work with originality is used, it should fall under the control of the right of information network dissemination. In this case, the picture collection involved is made up of 382 screenshots from the drama involved, which are not creation elements that have entered the public domain, but content with original expression in the drama involved. Therefore, providing the picture collection involved constitutes the act of providing the work.

Whether making a “film illustration with pictures” constitutes a fair use.

Fair quotation depends not only on the proportion of quotation, but also on the reasonable need for an introduction, comment, or explanation. In terms of the main function of the picture collection involved, it provides for the public the main plot and key scenes of the drama involved, rather than promotion and advertising information that keeps the suspense, which would have a substantial impact on the market value of the original work, damages the normal use of the work, and exceeds what’s necessary for proper quotation. Hence infringement is constituted.

[Adjudication Result]

The defendant was ordered to compensate the plaintiff RMB 30,000 for its economic losses.

Case 3

Red Packet Page Design Case: Software Page Design that Constitutes Original Expression Can Be Protected by Copyright Law

— XX Technology (Shenzhen) Company and Shenzhen XX Computer Company v. Beijing XX Network Technology Company over Copyright and Unfair Competition 

[Typical Significance]

Software page design that constitutes original expression can be protected as a work of fine art. If the relevant page design constitutes “decoration of certain influence”, the anti-unfair competition law can be applied for evaluation. The judgment of this case takes a firm position against plagiarism and free riding that may mislead consumers, protects originality, and encourages innovation to meet the diversified needs of users, showing an open attitude to protect new objects in the Internet field.

[Case Facts]

Plaintiff I enjoys the copyright in app A and the “red packet chat bubble and opening pages of app A” and has authorized Plaintiff II to operate the app and use the fine art works therein. The defendant is the copyright owner and operator of app B. The two plaintiffs held: the three kinds of red packet chat bubble and opening pages on app B are substantially similar to their existing fine art work, so the defendant’s act infringed the plaintiffs’ right of information network dissemination; the relevant red packet pages and overall page of app A constitute decoration of certain influence, while app B copied in an overall way, which can easily cause confusion or misrecognition by the relevant public. The plaintiffs requested the court to order that the defendant stop the act of copyright infringement and unfair competition, eliminate the impact, and compensate the plaintiffs a total of RMB 4.5 million for economic losses and reasonable expenses.

[Key Points of Adjudication]

Whether the red packet chat bubble and opening pages are original.

The matching and proportion of the colors and lines and the arrangement and combination of graphics and texts of app A’s “red packet chat bubble and opening pages” reflect the selection, judgment and choice of the creator, and have certain aesthetic appeal. Hence, it’s original and constitutes a work of fine art. The pages of app B operated by the defendant are substantially similar to the above-mentioned art work, infringing the right of information network dissemination enjoyed by the plaintiffs.

Whether app pages can be protected by both the copyright law and anti-unfair competition law.

The copyright law protects the exclusive rights arising in the process of work creation and dissemination, while the anti-unfair competition law protects the competitive interests arising in the process of business operation. The interests protected by the two laws do not coincide, so they can be applied at the same time. The plaintiffs’ relevant pages of the red packets on app A present the overall image of relevant service. Their texts, patterns, colors, and arrangement of these elements play the role of beautifying the service and should belong to decoration. The extensive use of the above pages can help identify the service source and constitutes “decoration of certain influence”. Therefore, the plaintiffs can seek protection under both the anti-unfair competition law and copyright law. The defendant just copied and slightly modified the plaintiffs’ relevant pages before using them for its own. Such improper use of others’ intellectual achievements to gain competitive advantage would not only confuse and mislead the relevant public but also harm the normal market competition order. Hence, the defendant’s relevant act constitutes unfair competition.

[Adjudication Result]

The court ordered the defendant to cease infringement and compensate the plaintiffs RMB 500,000 for economic losses and RMB 94,896 for reasonable expenses. None of the parties appealed after the first-instance judgment was pronounced. The judgment has taken legal effect.

Case 4

Time-lapse Photography Case: “Appropriate Quotation” in the Copyright Fair Use Mechanism

— Zhou XX v. XX Network Technology Company Concerning Dispute Over Right to Information Network Dissemination 

[Typical Significance]

When determining the work type of Beijing Time Lapse, the court adopted an identification method similar to the “public perception standard”, that is, since the work involved seen and perceived by the public is continuous dynamic images with aesthetic appeal rather than static images, Beijing Time Lapse only constitutes an audio-visual work rather than a photographic work. In addition, the case has great value for studying the “appropriate quotation” in the copyright fair use mechanism, the influence of nonprofit nature on fair use, and the situation that the defendant has been convicted of infringement but is not ordered to make compensation, etc. It was listed among China’s Top Ten Intellectual Property Adjudications Having the Greatest Research Value in 2021.

[Case Facts]

The plaintiff, Zhou X, a time-lapse photographer, created the work involved, Beijing Time Lapse, which comprises 5,392 single photographic works and 71 scenes. Beijing Time Lapse reflects Zhou’s personalized selection of shooting factors such as shooting angle, distance, shutter, aperture and exposure. With thousands of pictures taken at a fixed interval, the filmlike work makes still images dynamic while retaining high image quality. By controlling the interval between shoots, various movements and changes in daily life speed up. Natural landscape and urban architecture complement each other, presenting beautiful scenery. The whole work is independently conceived by Zhou and created by editing a series of single still photographic works to be a filmlike work.

The plaintiff completed the filmlike work on July 11, 2014, and published it for the first time on an official video website (user name: LC_TimeLapse) on July 22, 2014. After the video link was generated, the plaintiff quoted the playing link of the video in an article published on a real-name verified social app (user name: 雷de池) on the same day. In September 2018, the plaintiff found on a website (domain name: http://tv.***.com) operated by the defendant that the defendant used the content of his Beijing Time Lapse in the series Dream in China produced by the defendant. There are seven episodes in the series. In this case, the plaintiff only claimed that the defendant infringed on five of his photographic works in the fourth episode of Dream in China and five scenes of his filmlike work which last a total of 5 seconds. The defendant didn’t delete the infringing video within five working days as demanded in the lawyer’s letter received on March 12, 2019 and continued offering the accused infringing work on the website while knowing the infringement, showing obvious bad faith and causing mental and economic losses to the plaintiff. Thus, the punitive compensation mechanism should be applied to regulate the defendant.

[Key Points of Adjudication]

The dispute focuses on the type and ownership of the time-lapse photographic work.

In this case, Zhou made the work involved by first shooting pictures with landmark buildings in Beijing as the background and then editing them with computer software. While retaining high image quality, Zhou made the still pictures dynamic, forming continuous images of aesthetic appeal. The creator was original in the selection of materials and the expression of theme. Therefore, the work is under the protection of the copyright law. The copyright law protects works based on the form of expression rather than the method of creation. In view of the way of expression of Zhou’s work, the first-instance court determined the work involved falls under “works created by a process analogous to cinematography” as stipulated in Paragraph 6, Article 3 of the Copyright Law.

Manuscripts, original documents, legal publications, copyright registration certificates, certificates issued by certification agencies, contracts for obtaining rights, etc. related to copyright provided by the parties may serve as evidence. A natural person, legal person, or other organization who signs its name on a work or product shall be considered the author unless there is evidence to the contrary. In this case, evidence such as photos used as materials of the filmlike work involved, work registration certificate, login process of the video account, and login process of the social app account submitted by Zhou can prove that Zhou is the author of the filmlike work involved and enjoys copyright in the work given that the network company failed to submit evidence to the contrary.

Whether the use of the time-lapse photographic work in the TV program involved is an appropriate quotation and constitutes fair use.

When determining whether use of another’s work is “an appropriate quotation from a published work of others in one’s work for the purposes of introduction to, or comment on, a work, or demonstration of a point”, we should consider if such use of work has affected the normal use of the work and if it unreasonably damages the legitimate interests of the copyright owner. In this case, the network company asserted that the use of the about 5 seconds’ time-lapse work in the video involved is an appropriate quotation from a published work of others in order to present and introduce China’s development and changes as well as the openness and inclusiveness of China. The network company believed the TV program involved is a non-profit documentary featuring foreigners that shows the development and changes of contemporary China and the openness and inclusiveness of the Chinese people, so the use of the time-lapse photographic work involved should be fair use.

However, according to the legal provisions on fair use, non-profit nature is not a fundamental element in the determination of fair use. The fair use “for the purposes of introduction to, or comment on, a work, or demonstration of a point” stipulated in the Copyright Law can be both non-profit and commercial. Fair use means the way of use should be an appropriate quotation from a published work of others. This is the result of balancing the interests of the public and the interests of copyright owners when the Copyright Law designs the fair use mechanism. According to the ascertained facts, as far as the images of the TV program involved are concerned, the time-lapse photographic work occupies the whole screen as the main content during the playing; in terms of the playing time and form of the time-lapse work involved, each time-lapse photographic scene has a stop and reproduces the dynamic images of the time-lapse photographic work Beijing Time Lapse. In view of the above, the court held the use of Zhou’s copyrighted time-lapse photographic work in the TV program involved does not meet the conditions of the copyright law’s restrictions on copyright right and therefore does not constitute fair use.

Whether the defendant’s broadcasting of the TV program involved on the website operated by it constitutes infringement of the plaintiff’s copyright and what kind of copyright of the plaintiff has been infringed.

The plaintiff claimed that the defendant infringed on its rights of authorship, alteration, integrity, reproduction, distribution, information network dissemination, filming, projection, adaptation and compilation in its filmlike work.

According to the facts ascertained in this case and the statements of the parties, the TV program involved was uploaded by the network company to its website for users to obtain the work at a time and place selected by them. The plaintiff stated that the time-lapse photographic work involved had not been authorized to others, and the defendant also stated to its knowledge, the television station had not been authorized for the time-lapse photographic work involved and could not provide the proof of authorization. Therefore, the court found that the network company infringed Zhou’s right to communicate the filmlike work involved through information network by disseminating the filmlike work through information network through the dissemination of the TV program involved through information network.

In addition, the defendant, the network company, is not the producer of the TV program involved and communicated the filmlike work involved through information network by uploading the TV program involved to the Internet. Instead of direct use of the filmlike work involved, the network company communicated it through information network by disseminating the TV program involved. From the perspective of exerting the right of authorship, the law safeguards the author’s right to have his/her name indicated on his/her works to ensure the correspondence between authors and works. The obligation of indicating the author should lie on the party directly using the work. From the perspective that the law regulates acts, the network company in this case carried out the act of communication through information network rather than direct disassociation of the author from the work or alteration, integrity, reproduction, distribution, screening, filming, adaption or compilation of Zhou’s copyrighted work; the TV program communicated by the network company was produced by others and had been broadcast by a TV station, and the plaintiff has no evidence proving that the defendant re-edited or rearranged the contents of the TV program involved, or trimmed, re-produced or distorted the contents of the TV program involved to highlight the use of the filmlike work involved. To sum up, the plaintiff’s claim that the defendant infringed on its rights of authorship, adaptation, alteration, integrity, reproduction, distribution, projection, filming and compilation of the copyrighted work lacks factual and legal basis and is not supported by the court. Another point of view is that the network company, who disseminated the TV program involved containing content of Zhou’s work to the public through information network without his permission, infringed Zhou’s copyright in the work involved. As to the specific rights claimed by Zhou, the relevant act of the network company infringed on Zhou’s rights of authorship, reproduction and communication through information network in the work involved.

[Adjudication Result]

The defendant was ordered to cease the infringement and compensate the plaintiff RMB 500,000 for his economic losses. Neither party brought an appeal after the first-instance ruling was pronounced, and the first-instance ruling has taken effect.

Case 5

Letters Alive Case: Use of Work Beyond the Purpose and Necessity of Quotation Does Not Constitute Fair Use

— Chen XX and Chen X v. Beijing XX Cultural Development Company and Shanghai XX Film and Television Cultural Communication Company over Copyright Ownership and Infringement Dispute 

[Typical Significance]

Cultural variety shows are often closely related to the use of literary and artistic works such as poems, calligraphy, and painting. So program producers should pay attention to appropriate use of existing works while polishing program content and pursuing program effects. This case has analyzed and identified common infringement acts and grounds of defense in relation to literary programs, analyzed the connotation and denotation of the alteration right, and studied the legal boundaries of infringing and fair use, and hence provided guidance for healthy and well-regulated growth of the industry.

[Case Facts]

Chen X, the father of a female writer, wrote and published a letter to his daughter titled “Past, Present, and Future” (hereinafter referred to as the “letter involved”). In the tenth episode of season II of Letters Alive (hereinafter referred to as the “program involved”) made and disseminated by the three defendants, an actor read part of the letter involved and Chinese subtitles were added. The name, some words and paragraph order of the letter involved were changed in the part read. Before and after the letter was read, the host and guests introduced and commented on the letter involved. As the heir of Chen X, the three plaintiffs brought a lawsuit on the grounds that the three defendants infringed on the rights of alteration, reproduction, performance, and information network dissemination in the letter involved and demanded the three defendants to make an apology, eliminate the bad effects, and pay for mental damages, economic losses, and related reasonable expenses in compensation. The three defendants argued that their use of the letter involved constituted fair use and did not infringe the copyright of the letter involved.

[Key Points of Adjudication]

The three defendants altered, reproduced, performed, and disseminated the letter involved through information network.

In the use of the letter involved, the program involved deleted the long sentences and paragraphs of the letter involved and changed the order of the paragraphs, which changed the text or content of the letter involved and therefore constituted alteration of the letter involved. The program involved fixed and reproduced some content of the letter involved in the form of subtitles. Change in partial content without new expression constitutes reproduction of the letter involved. During the recording of the program involved, an actor, facing the audience, read some of the content of the letter involved. This is considered a performance of the letter involved. As the program involved includes the performance and subtitles of the letter involved, the dissemination of the program involved actually achieved the effect of providing the public with the letter involved, constituting dissemination of the letter involved through information network.

The act involved does not constitute fair use.

The program involved reproduces some substantive content of the letter involved. Such use is not intended for introduction, comment, or explanation, and thus is not an appropriate quotation. The alteration of the letter involved by the program involved would not only influence the economic interests of the three plaintiffs, but also infringe on the right to alter the letter involved. Therefore, the act involved is not fair use and constitutes infringement.

[Adjudication Result]

For the infringement of the right to alter the letter involved, the three defendants were ordered to publish a statement to eliminate the bad effects and compensate the three plaintiffs RMB 50,000 for economic losses and RMB 12,636 for reasonable expenses.

None of the parties appealed after the first-instance judgment was made. The judgment has taken effect.

Case 6

Barrier-free Films Case: Providing Barrier-Free Films to Unspecified Public Does Not Constitute Fair Use under Copyright Law

—Beijing XX Company v. Shanghai XX Company Concerning Dispute over Infringement of the Right to Information Network Dissemination 

[Typical Significance]

This case is the first typical case in China where a “barrier-free film” triggered a dispute over the right to information network dissemination. The judgment makes it clear that providing barrier-free film streaming service without distinguishing the audience hampers the normal commercial use of the original film, damages the legitimate rights and interests of the copyright owner, and constitutes infringement rather than fair use in the sense of the copyright law. The judgment of the case provides useful reference for regulating the development of barrier-free films and correctly applying relevant provisions on fair use in the copyright law.

[Case Facts]

The plaintiff enjoys the exclusive right to disseminate the film I Am Not Madame Bovary involved through information network. The plaintiff found that the defendant, without authorization, provided the streaming service of the barrier-free version of I Am Not Madame Bovary to the unspecified public through a barrier-free film app developed and operated by the defendant and believed the defendant’s act violates the provisions of China’s current copyright law on fair use and infringed on the plaintiff’s exclusive right to disseminate the film involved through information network. Therefore, the plaintiff requested the court to rule that the defendant cease the infringement and pay a total of RMB 500,000 in compensation for its economic losses and reasonable expenses. The defendant argued that the act involved constitutes fair use in the sense of the copyright law and does not constitute infringement.

[Key Points of Adjudication]

Determination of whether the barrier-free film involved constitutes a new work and whether the producer has copyright in the barrier-free film

Compared with the film involved, the barrier-free version differs in the following aspects: dubbing, sign language interpretation and subtitles were added to the images and sound effects of the film involved, and logo “Chinese Barrier-free Films” and characters “Producer: China Braille Press” with voice reading were added at the beginning and end of the film. The barrier-free version of the film involved is an appropriate modification and addition to the film involved, does not affect the basic content and expression of the film involved, and is neither a new work nor an adaptation in the sense of the copyright law. Accordingly, content such as “Producer: China Braille Press” added in the post production cannot be used to determine the copyright ownership of the barrier-free version of the film involved.

Determination of whether the defendant’s provision of the barrier-free version of the film involved on the app involved constitutes fair use

At the time of infringement notarization, the barrier-free version of the film involved can be watched by the unspecified public who have registered and logged in to the app. During the trial of the case, the app involved was updated, changing the registrant review mechanism. As of the second trial of the case, only people with disabilities can register and log in to watch the film involved. But this also indicates that even after the update of the app involved, those who can perceive the barrier-free version of the film involved are not limited to dyslexics. Therefore, the alleged infringement of the defendant does not meet the constitutive requirement of “providing published works to the dyslexics in a barrier-free way that they can perceive”.

Furthermore, the public can get the full content of the film involved by watching or listening, so the alleged infringement has substantially substituted the film involved and affected the normal use of the film involved. The app involved, open to the unspecified public, drained traffic from the authorized streaming platform and would inevitably damage the economic benefits obtained by the plaintiff from the authorized film involved and the legitimate interests of the copyright owner. Hence the defendant’s act does not constitute fair use.

[Adjudication Result]

The defendant was ordered to cease the infringement and pay RMB 10,000 in compensation for economic losses.

Case 7

Panda Gun Gun Case: Derivative Works and Determination of Fair Use Limit

—Beijing XX Cultural Communication Co., Ltd. v. Hangzhou XX Education Technology Co., Ltd. over Infringement on the Right to Information Network Dissemination 

[Typical Significance]

In the age of web 2.0, a large number of derivative works, such as adaptations of famous paintings, that incorporate the author’s original wisdom, spread rapidly on the Internet by virtue of their humorous or straightaway expressions. Among these are many high-quality works that have high artistic appreciation value and can enrich the intellectual life of the public, just like the works involved in this case. This case aims to encourage the creation and dissemination of similar high-quality derivative works by protecting innovative creation methods of derivative masterpieces and advocates respecting and protecting intellectual property rights in the whole society. This case was selected into the Annual Cases of Chinese Courts in 2022.

[Case Facts]

The plaintiff, Beijing XX Cultural Communication Co., Ltd., is a domestic animation pre-production and IP operation company. “Panda Gun Gun” is an art image created by Zeng X, alias A Mang, a post-90s illustrator and animator. Since 2017, Zeng has created the illustration series of Panda Gun Gun by combining the image with life, films and famous paintings and published books such as When Gun Gun Meets Chinese and Foreign Famous Paintings, which are available for sale on JD and Dangdang. The art image has also been selected into the WeChat expression library, and its peripherals are very well received by people. On November 14, 2019, Zeng granted the exclusive use right to the plaintiff on an exclusive basis as well as the right to defend its rights and seek compensation independently in its own name.

The plaintiff claimed that the defendant, Hangzhou XX Education Technology Co., Ltd. without its permission, used 23 dynamic illustration works in which the plaintiff enjoys exclusive use right in the article WOW! Panda Gun Gun Steps into World Famous Paintings in its WeChat official account (Blue Pencil), infringing the plaintiff’s right of information network dissemination, and requested the defendant to maintain a statement on the home page of its WeChat official account (Blue Pencil) for 48 consecutive hours to make an apology and eliminate the effects and to compensate the plaintiff RMB 66,000 for economic losses and RMB 3,000 for reasonable expenses.

[Key Points of Adjudication]

Whether the plaintiff has copyright.

In this case, the original pictures, the original author’s creation statement, the original author’s Weibo real name authentication page, and the information about the first publication of the works, authorization letter, etc. can serve as evidence to determine the copyright of the works in the absence of evidence to the contrary. Regarding the viewpoint mentioned in the defendant’s defense that the adapted works only have negative copyright, the court held that though created based on famous Chinese and foreign paintings and drawings and referring to their overall composition and color scheme, the 23 Panda Gun Gun series pictures still reflect Zeng’s unique judgment and choice in the composition, character replacement, and dynamic postures of the pandas, showing a certain degree of originality. In addition, the copyright term of the famous paintings referenced by the works involved has expired. The paintings have entered the public domain. So, use of these paintings to create derivative works does not require anyone’s consent. Therefore, the Panda Gun Gun series are adapted works, and Zeng, as the author of the works involved, enjoys copyright and is entitled to grant the right to information network dissemination to the plaintiff. The plaintiff has obtained the corresponding copyright through authorization and permission.

Item 12, Paragraph 1, Article 10 of the Copyright Law of the People’s Republic of China stipulates that the right of information network dissemination, that is, the right to make a work available to the public by wire or by wireless means, so that people may have access to the work at a time and place of their own choosing. According to the first paragraph of Article 48, anyone who makes a work available to the public through information network without permission of the copyright owner shall, depending on the circumstances, bear civil liability such as ceasing the infringement or paying compensation for damage. In this case, the article involved made it possible for the public to have access to the works involved at a time and place of their own choosing and the infringement continued after the plaintiff was authorized, infringing the plaintiff’s right to communicate the works involved through information network. Hence corresponding infringement liability should be assumed.

Whether the defendant’s use is fair.

Regarding the defense opinion that the defendant’s use of Panda Gun Gun is fair and does not constitute infringement, the court held that as the article involved mentioned in the beginning that “Today I would like to recommend an illustrator @阿尨along”, we can tell the article was intended to introduce and recommend his works. However, a total of 23 works from Zeng’s series When Gun Gun Meets Chinese and Foreign Famous Paintings were used in the article, and the whole article was almost composed of the 23 works with only a few words. This obviously exceeds the necessity limitation of fair use and violates Article 22 of the Copyright Law of the People’s Republic of China. Therefore, the defendant’s defense opinion was not adopted by the court.

Determination of compensation method and amount

As for the amount of compensation, the plaintiff failed to submit evidence to prove his economic losses and the defendant’s illegal income and there is no market price of similar works for reference. Hence the court determined the amount of damages as appropriate after giving full consideration to such factors as the creation cost, originality, the degree of subjective fault of the infringer, the type of infringing work, and the scope of dissemination. With regard to the lawyer’s fee, although the plaintiff had a lawyer in court, he failed to submit the agreement of authorization or bills, so it’s impossible to prove their agreement on the relevant amount or the actual expenditure. In addition, the plaintiff bears the burden of proof. So, the claim was not supported by the court. Regarding the notarization fee, the plaintiff failed to provide bills to prove its actual expenditure, and the plaintiff bears the burden of proof, so it was not supported by the court.

Regarding the apology, considering that the plaintiff does not enjoy the copyright of the works involved, and that the defendant had indicated the author and did not distort or tamper with the works involved in the use, the plaintiff’s request for apology was not supported.

[Adjudication Result]

The court ruled that the defendant compensate the plaintiff, Beijing XX Cultural Communication Co., Ltd. RMB 18,400 for economic losses.

Case 8

Dubbing Show Case: Business Model Impacts Fault Determination of Short Video Service Providers

—Beijing XX Cultural Company v. Hangzhou X Technology Company over Infringement on the Right to Information Network Dissemination 

[Typical Significance]

As short video industry has become a highly concerned corner in the field of network-related copyright, the fault determination of network service providers should meet the development needs of the industry. When a short video service provider intentionally uses its business model to seek improper benefits, its ability to foresee infringement should be considered an important factor in determining its fault. This judgment approach aims to encourage short video service providers to adopt healthy and legitimate business models, thereby promoting the sustainable development of the industry.

[Case Facts]

The plaintiff is the copyright owner of the short animations Ali’s Dreamland · My Little Cloud, Ali · Mother and Ali · Carrier Swallow (hereinafter referred to as the “works involved”). Short as they are, the images are well made and the scores are beautiful. The defendant is the developer and operator of XX mobile app (hereinafter referred to as the “app involved”).

The plaintiff collected evidence and found that there were at least 14 dubbing materials originating from the works involved, as well as more than 20,000 dubbing videos made based on these dubbing materials on the app involved. Users can send gifts which are redeemed with charge on the platform to the dubbing videos made based on dubbing materials. The plaintiff filed a lawsuit on the grounds that its right of information network dissemination was infringed, requesting the defendant to stop the infringement and pay RMB 162,000 in compensation for economic losses and reasonable expenses.

[Key Points of Adjudication]

The defendant is not just a service provider of information storage space.

For the part of alleged infringing videos with uploader information provided by the defendant, it can be determined that the defendant provided the service of information storage space; for the part without uploader information provided by the defendant, as it’s impossible to confirm whether they were uploaded by real network users, the defendant bears the adverse consequences of poor proof and is presumed to be the provider of relevant infringing videos.

Even if the alleged infringing videos were uploaded by network users, the defendant still committed contributory infringement.

First of all, in this case, network users uploaded the alleged infringing videos for the public rather than any individual, which does not meet the constituent element of fair use and constitutes direct infringement. Secondly, the app involved is a mobile app that provides dubbing services for the public. To be more interesting and interactive, users often choose clips of well-known films and television dramas as dubbing materials. Such works are usually not uploaded to cyberspace for free by the right holders, and it’s difficult for ordinary network users to obtain authorization. In such case, the defendant’s business model objectively runs the risk of inducing the uploading of infringing videos. The defendant could also foresee that there may be infringing videos in the app involved. Plus, the works involved have certain invisibility and most of the titles of the accused infringing materials contain the role name of “Ali”, so the defendant would discover the obvious infringement of the accused infringing videos as long as it had fulfilled ordinary duty of care. Furthermore, as the defendant directly profited from the alleged infringing videos, it was a business activity no matter how much it profited, so it should exercise a higher duty of care for the uploaded content. To sum up, the defendant has a “should-have-known” fault in the alleged infringement and should bear the tort liability.

[Adjudication Result]

The defendant was ordered to compensate the plaintiff RMB 15,000 for economic losses and RMB 250 for reasonable expenses.

Neither party brought an appeal after the first instance, and the first-instance ruling has taken effect.

Case 9

Case of Identifying Dramas by Sound: Unauthorized Provision of Works on App “Identify Dramas by Sound” Constitutes Infringement

— Xi’an XX Company v. Shanghai XX Company Concerning Dispute over Infringement on the Right to Information Network Dissemination 

[Typical Significance]

The case makes it clear that the practice of uploading the clips of others’ works to its server and providing the clips of the work involved for online playing by users through its “identify dramas by sound” function without the right holder’s authorization constitutes infringement on the right of information network dissemination and is not fair use. The judgment of the case determined the standard of “providing works” in the information network irrespective of the external “innovative” form, and found the improper use of works by innovative technical means infringing, according to the judgment idea of “encouraging technology for good, maintaining technology neutrality, and preventing technology for bad”, which will help regulate network communication and promote the orderly development of cultural industries.

[Case Facts]

The plaintiff enjoys the exclusive right to disseminate the television drama “Soldiers and Their Commander”. The defendant is the operator of an app that provides the function of “identify dramas by sound”. By editing the work involved into one-minute clips and uploading them to the server, the app can identify the sound and compare it with the work clips on the server to realize automatic capture and playing when network users play the sound of the work involved. Users can also publish the work clips identified in relevant sections of the defendant’s app. The plaintiff believed that the defendant infringed on its right of information network dissemination and requested that the defendant be ordered to stop the infringement and compensate for the losses.

[Key Points of Adjudication]

“Providing works” for the purpose of the right of information network dissemination means making works available on the information network by uploading them to the network server, setting shared files or using file sharing software, etc. so that the public can download, browse or obtain them by any other means at the time and place selected by them.

The defendant edited and uploaded the work involved to its server, and then provided users with clips of the work involved for online playing through the embedded “identify dramas by sound” function and comparing the sound provided by network users. Although the defendant’s above-mentioned act is only aimed at each identification act of network users, it infringed the defendant’s right of information network dissemination by making the work involved available on the network server for the public to obtain the work through the defendant’s app at the time and place selected by them.

Plus, network users, after obtaining the clips of the work involved through the “identify dramas by sound” function, can publish them in the sections set by the defendant’s app. The public can also obtain the published video clips of the work involved at the time and place selected by them. As the defendant failed to prove the specific publisher information of the clips of the work involved, it should be determined that the defendant is the direct provider of the clips of the work involved on its app and thus infringed the plaintiff’s right of information network dissemination.

[Adjudication Result]

The defendant was ordered to compensate the plaintiff for economic losses.

Case 10

Case of FIFA World Cup Act Preservation: Providing Live Streaming Service Without Permission of the Right Holder Should Be Considered Infringement

—XX Network Company v. Beijing XX Technology Company Concerning Dispute over Infringement on the Right to Information Network Dissemination 

[Typical Significance]

This is a typical case where the people’s court, with an accurate understanding of the legislative spirit, made a timely order for act preservation. For live television broadcasting, the value of the FIFA World Cup lies in suspense and timeliness, and the value of the final is far greater than that of the knockout and group stage matches. If the right holder can only obtain legal remedies after the infringing live streaming of the final occurs, the losses may be difficult to measure and cannot be fully compensated for. In this case, the preservation application was received on the eve of the World Cup final. Given the circumstances, the ruling was made and served on site on the same day, preventing the infringement which had been highly likely to cause significant damage and protecting the legitimate interests of the right holder to the maximum extent.

[Case Facts]

On the eve of the World Cup final, a network company filed an act preservation application, claiming that it is the copyright owner of the World Cup Qatar within China and has the exclusive right to stream the program involved through information networks in the form of live, delayed and on-demand streaming as well as the right to permit or prohibit others from exercising or partially exercising the above rights. Since the opening of the World Cup Qatar, the network company had continuously discovered that XX mobile app operated by Beijing XX Technology Company provided the service of live streaming the World Cup Qatar in the event zone and that users can watch the live World Cup matches by clicking “live streaming”. The court made a ruling in accordance with the law and served the ruling on site on the day of receiving the preservation application in this case. The respondent actively fulfilled the obligations determined by the ruling and stopped the live streaming of the World Cup matches on its mobile app.

[Key Points of Adjudication]

The court held that in the act preservation case arising from the dispute over infringement of event program copyright, the following factors can be given overall consideration to determine whether “the damage is irreparable”:

Whether the sports event program involved received high attention and has a high market value.

Football is the world’s most popular sport, and the World Cup is a football event of the highest honor in the world that attracts a phenomenal level of attention. As the last world cup of the era of Messi and Ronaldo rivalry, the World Cup Qatar meant a lot to fans. With the Qatar World Cup moving forward, especially after entering the knockout stage, its commercial value became higher and higher.

Whether the accused act occurred during the event involved.

The World Cup Qatar 2022 kicked off on November 21 and ended on December 18, with a quite short duration. The network company applied for act preservation on December 16, just before the start of the two most commercially valuable finals of the World Cup.

Whether the accused act is a live streaming of the event.

As a sports event, the unpredictable changes on the field and the unexpectable results of the matches are the core factors that attract fans. Therefore, live streaming of the event is not comparable to delayed, on-demand or other streaming in terms of platform traffic. According to the infringement evidence submitted by the network company, when one opens the mobile app, the middle of the home page shows: [World Cup] Today at 23:59 Netherlands vs Ecuador; [World Cup] Tomorrow 03: 00 England vs USA. Click on “Events” in the navigation box below, and “Football” appears at the top of the page. Click “World Cup Friday 017 Today 18:00 Wales 0:0 Iran” to enter the details page of the match. There is a play box at the top of the page, which displays the match information. There are “animation live streaming” and “video live streaming” in the play box for choice. Click “video live streaming” to load the match. There is a “live streaming” under the play box, showing the match progress and the information of match milestones. The comparison shows the content of the above timestamp preservation is consistent with the content of the World Cup program on that day. The court held that the evidence submitted by the plaintiff preliminarily proved that the defendant, without permission of the right owner, provided the live streaming of the FIFA World Cup Qatar 2022 matches to the public through a mobile app operated by it during the event.

Rights enjoyed by the applicant and scope of rights

According to the media rights confirmation letter issued by FIFA and the authorization letter and situation explanation issued by China Media Group, the network company has the right to stream the event (live, delayed or on-demand streaming) as a free or paid service and has the right to protect its rights, with stable effect of the right of seeking protection.

[Adjudication Result]

The respondent, Beijing XX Technology Company, was ordered to immediately stop live streaming the FIFA World Cup Qatar 2022 matches on the mobile app.