Beijing High People’s Court

 Guidelines for the Trial of Copyright Infringement Cases

 

  

Table of Contents

 

Chapter I. General Provisions. 

1.1 Principle of trial 

1.2 Content of trial 

1.3 Cause of action. 

1.4 Cause of action. 

1.5 Cause of action. 

1.6 Object of the plaintiff’s rights. 

1.7 Determination of exclusive license. 

1.8 Scope of exclusive license and suit 

1.9 Suit instituted by a licensee. 

1.10 “Grant of right of action”. 

1.11 Suit instituted after the execution of a collective management contract 

1.12 Parties entitled to institute suits in respect of general works of employment 

1.13 Parties entitled to institute suits in respect of collective works. 

1.14 Parties entitled to institute suits in respect of joint works. 

1.15 Investigation of the scope of right 

1.16 Investigation of statutory scope of license. 

1.17 Suits in case of an overlap between liability for breach of contract and liability for infringement 

1.18 Determination of liability for infringement 

1.19 Trial of foreign-related suits. 

Chapter II. Investigation of Object of Rights. 

2.1 Investigation into whether the object constitutes a work. 

2.2 Determination of originality. 

2.3 Determination of “completion of creation”. 

2.4 Simple graphs, letters and phrases. 

2.5 Titles and character names used in works. 

2.6 Works of applied art 

2.7 Architectural works. 

2.8 Graphic works. 

2.9 Model works. 

2.10 News report 

2.11 Collated and annotated editions of ancient books. 

2.12 Video of variety show.. 

2.13 Video of sports event 

2.14 Online game. 

2.15 Elements of online game. 

2.16 Object of performer’s rights. 

Chapter III. Investigation of Ownership. 

3.1 Proof of ownership. 

3.2 Verification of author’s name. 

3.3 Corresponding relationship between a non-real name and the author’s identity. 

3.4 Determination of ownership of an interim group’s work. 

3.5 Determination of ownership of digital pictures. 

3.6 Determination of ownership of works of employment 

3.7 Determination of ownership of commissioned works. 

3.8 Ownership of works created using elements or raw materials of folk literature or art 

3.9 Authorship of phonograms. 

3.10 Determination of ownership involving multiple licenses or assignments. 

Chapter IV. Determination of Infringement of Moral Rights. 

4.1 Right of publication and contract 

4.2 Presumed consent to publication. 

4.3 The right of publication is a one-off right 

4.4 Right of authorship. 

4.5 Investigation of the method of attribution of authorship. 

4.6 Exercise of the right of authorship in works of employment 

4.7 Use of content of a work and infringement of the right of authorship. 

4.8 Judgment on infringement of the right of integrity of protected works. 

Chapter V. Determination of Infringement of Property Right 

5.1 Acts subject to the right of reproduction. 

5.2 Acts subject to the right of distribution. 

5.3 Exhaustion of the right of distribution.

5.4 Determination of infringement of the exclusive right of publication.

5.5 Judgment on the duty of reasonable care by a publisher.

5.6 Judgment on failure of a publisher to perform the duty of reasonable care. 

5.7 Judgment on the performance of the duty of reasonable care by a publisher. 

5.8 Acts subject to the performance right 

5.9 Acts subject to the right of showing. 

5.10 Acts subject to the broadcasting right 

5.11 Broadcasting right and right of broadcasting organizations. 

5.12 Acts subject to the right of adaptation. 

5.13 Adaptation and style of work. 

5.14 Adaptation and reproduction. 

5.15 Ownership of adapted works and exercise of right 

5.16 Right of compilation. 

5.17 Acts subject to the right of compilation. 

5.18 Application of miscellaneous provisions. 

Chapter VI. Determination of Infringement of Neighboring Rights. 

6.1 Method of identification of performers. 

6.2 Film works and performer’s right 

6.3 Right of producer of audio & video recordings. 

6.4 Proof of same sound source. 

6.5 Rebroadcasting right of broadcasting organizations. 

6.6 Scope of protection of the exclusive right of format design. 

Chapter VII. Investigation of Defense. 

7.1 Content of defense. 

7.2 Principle of investigation of defense. 

7.3 Limited expression. 

7.4 Necessary scene. 

7.5 News on current events. 

7.6 Public domain. 

7.7 Other prior works. 

7.8 Independent creation.

7.9 Legal authorization. 

7.10 Personal use. 

7.11 Appropriate quotation. 

7.12 Use in classroom teaching and scientific research. 

7.13 Reprinting and extracts by newspapers. 

7.14 Production of phonograms. 

Chapter VIII. Determination of Legal Liability.

8.1 Exception to cessation of infringement 

8.2 Principle of fault 

8.3 Principle for determining the amount of damages.

8.4 Method for determining the amount of damages and order of application. 

8.5 Actual loss of the right holder. 

8.6 Illegal proceeds of the infringer. 

8.7 Spoliation of evidence. 

8.8 Determination of the amount of damages in the court’s discretion. 

8.9 Factors to be considered in determining the amount of statutory damages. 

8.10 Malicious infringement 

8.11 Reasonable expenses. 

8.12 Proof of reasonable expenses. 

8.13 Compensation for reasonable expenses. 

8.14 Attorney’s fee. 

8.15 Conditions for the application of liability of apology. 

8.16 Principle for the application of moral damages. 

8.17 Determination of the amount of compensation for moral damages. 

Chapter IX. Determination of Infringement of the Right of Communication via the Internet 

9.1 Infringement of the right of communication via the Internet 

9.2 Plaintiff’s burden of proof. 

9.3 Defendant’s burden of proof. 

9.4 Finding of alleged infringement 

9.5 Comprehensive investigation. 

9.6 Direct infringement 

9.7 Cooperation in infringement 

9.8 Aiding or abetting in infringement 

9.9 Fault in aiding or abetting in infringement 

9.10 Determination of provision of information storage space service. 

9.11 Judgment on whether an information storage space service provider should have known. 

9.12 Judgment on whether an information storage space service provider should have known.

9.13 Judgment on whether an information storage space service provider should have known.

9.14 Determination of provision of linking service. 

9.15 Judgment on whether a linking service provider should have known. 

9.16 Setting links by destroying or avoiding technical measures. 

9.17 Relationship between Article 36 of the Tort Liability Law and the safe harbor clause. 

9.18 Understanding of “change”. 

9.19 Understanding of “directly obtain economic benefit”. 

9.20 Essential conditions for a linking service provider to enter the safe harbor. 

9.21 Determination of notice. 

9.22 Determination of web cache. 

9.23 Determination of reasonable use of web cache. 

9.24 Scheduled broadcasting. 

9.25 Simultaneous retransmission. 

9.26 Types of technical measures. 

9.27 Criteria for determination of technical measures. 

9.28 Jurisdiction over cases involving goods purchased on line. 

9.29 Determination of website operator. 

Chapter X. Determination of Infringement of Copyright in Cinematographic Works. 

10.1 Titles of cinematographic works. 

10.2 Protection of character images. 

10.3 Foreign cinematographic works having not been approved by the administrative authorities  

10.4 Determination of ownership of cinematographic works. 

10.5 Validity of certificates issued by foreign institutions. 

10.6 Determination of alleged infringing content 

10.7 Basic rule for determination of infringement 

10.8 Judgment on “access”. 

10.9 Comparison of expressions of works. 

10.10 Judgment on “substantially similarity”. 

10.11 Judgment on “substantial similarity” between the works on the same historic theme. 

10.12 Parties liable for infringement of the right of adaptation. 

10.13 Parties liable for infringement of right of making cinematographic works. 

10.14 Right of making cinematographic works and right of integrity of protected works. 

Chapter XI. Determination of Infringement of Copyright in Computer Software. 

11.1 Typical circumstances of infringement of copyright in computer software. 

11.2 Fact finding in end user cases. 

11.3 Determination of infringement by end user of the right of reproduction. 

11.4 Order of trial of plagiarism cases. 

11.5 Method of determination of software version in plagiarism cases. 

11.6 Comparison to determine “substantial similarity”. 

11.7 Corresponding relationship between source program and object program. 

11.8 Determination of “substantial similarity”. 

Supplementary Provisions. 

 

Chapter I. General Provisions

 

1.1 Principle of trial

 

In the trial of copyright infringement cases, the discretion shall be exercised with the aim of enhancing protection of copyright, encouraging creation of works, promoting dissemination of works and balancing the interest among the parties concerned.

 

1.2 Content of trial

 

In the trial of a copyright infringement case, the court shall generally investigate, inter alia, the cause of action stated by the plaintiff, whether the court has jurisdiction over the case, whether the subject is appropriate, basis and scope of the plaintiff’s rights, alleged infringement, whether the defense presented by the defendant is tenable and the method of assumption of civil liabilities by the defendant.

 

1.3 Cause of action

 

In the same case, if the plaintiff makes claims of both copyright infringement and trademark or patent infringement, such claims may be adjudicated separately subject to the applicable laws regarding jurisdiction.

 

1.4 Cause of action

 

In the same case, if the plaintiff claims that the same infringement constitutes both a copyright infringement and a violation of Article 2 of the Anti-unfair Competition Law, such claims may be adjudicated together, in which case, if the plaintiff’s claims can be upheld pursuant to the Copyright Law, the case shall be tried without applying Article 2 of the Anti-unfair Competition Law; if the plaintiff’s claims cannot be upheld pursuant to the Copyright Law but do not conflict with the policies of the Copyright Law, the case may be tried pursuant to Article 2 of the Anti-unfair Competition Law.

 

1.5 Cause of action

 

In the same case, if, with respect to a number of alleged acts of infringement involving the same subject, the plaintiff claims that some acts constitute a copyright infringement and some constitute unfair competition, the court shall decide whether or not to adjudicate such claims together according to the specific circumstances of the case.

 

1.6 Object of the plaintiff’s rights

 

In investigating the object of the plaintiff’s rights, the court shall generally investigate, inter alia, whether the object that the plaintiff petitions to protect is a work or an object of neighboring right, and whether the object falls within the scope of protection of the Copyright Law.

 

1.7 Determination of exclusive license

 

Where a contract expressly grants an exclusive license, unless there is proof to the contrary, the court may directly determine that the licensee has the right to prohibit the copyright owner from using the works involved to the extent provided in the contract.

 

If the contract uses “sole license” or similar expressions, the court shall determine whether the license is exclusive in nature by giving comprehensive consideration to the relevant terms and purpose of the contract, course of dealing and other evidences available in the case.

 

1.8 Scope of exclusive license and suit

 

Where a copyright owner grants an exclusive license to another person, the licensee and the copyright owner may institute a suit independently or jointly in respect of any infringement falling within the scope of exclusive license. Where the copyright owner proves his/her actual losses, the court shall uphold his/her claim for damages.

 

1.9 Suit instituted by a licensee

 

Where a licensee has the contractual right to prohibit another person (except the copyright owner) from using the relevant works to the extent as agreed, he/she may institute a suit in respect of any infringement independently, and may apply for participating in the suit that has already been instituted by the copyright owner.

 

1.10 “Grant of right of action”

 

Where a copyright owner has not licensed or assigned his/her copyright to another person and has only granted such person the right of action, the suit instituted by such person shall be dismissed. However, a suit instituted by the licensee or assignee independently in respect of any infringement occurred prior to the grant of license or assignment may be accepted to the extent expressly provided in the relevant contract.

 

1.11 Suit instituted after the execution of a collective management contract

 

After the execution of a collective management contract, a copyright owner may not institute a suit in respect of any infringement on any copyright specified in the contract, unless there’s evidence that the collective management organization fails to exercise its rights properly or otherwise provided in the collective management contract.

 

1.12 Parties entitled to institute suits in respect of general works of employment

 

With respect to a work of employment in which the author has copyright, if, within two years after the creation thereof, any other person uses such work without the permission of the author’s employer and in any manner falling within the business scope of the employer, whether or not incorporated, both the author and the employer may institute a suit against such person independently, and if any other person uses such work without the permission of the author and in any manner not falling within the business scope of the employer, whether or not incorporated, the author may institute a suit against such person independently, and the employer may exercise its right of action if so agreed with the author; where the infringement occurs after the said two-year period, the author may institute a suit against such person independently. With respect to the parties entitled to institute suits in respect of the right of authorship in works of employment, Article 4.6 of these Guidelines shall apply.

 

1.13 Parties entitled to institute suits in respect of collective works

 

With respect to a collective work, each author may claim his/her right in respect of the part created by him/her independently.

 

1.14 Parties entitled to institute suits in respect of joint works

 

The copyright in a joint work is owned by a number of persons. If the basic information of all of the copyright owners can be verified, all of the copyright owners may institute a suit as co-plaintiffs, provided that any copyright owner who has expressly waived his/her substantive right may be excluded from the suit, and any copyright owner who is unwilling to participate in the suit and has not waived his/her substantive right may still be listed as a co-plaintiff, but his/her absence from the suit shall in no way affect the trial of the case. If the basic information of all of the copyright owners cannot be verified on the basis of the evidences available, the copyright owners whose basic information has been verified may be listed as co-plaintiffs, provided that the relevant share shall be reserved for the copyright owners who have not participated in the suit in the judgment given in favor of the copyright owners.

 

1.15 Investigation of the scope of right

 

In the trial of a case of copyright infringement, the court shall investigate whether the right claimed by the plaintiff is a copyright or neighboring right and verify the specific claims.

 

1.16 Investigation of statutory scope of license

 

Where the rights granted by a copyright owner to a licensee exceed the scope prescribed in the Copyright Law, such agreement shall only be valid between the copyright owner and the licensee, and may not be used by the licensee as the basis for any infringement claim.

 

1.17 Suits in case of an overlap between liability for breach of contract and liability for infringement

 

Where the rights granted by a copyright owner to a licensee fall within the scope prescribed in the Copyright Law and the contract contains special provisions regarding the ways to exercise such rights, if the licensee breaches such provisions, the copyright owner may institute an infringement action.

 

1.18 Determination of liability for infringement

 

In determining whether an alleged act constitutes an infringement and whether the defendant shall be liable for infringement, the court shall generally investigate, inter alia, the specific circumstances of the alleged act, whether the defendant has committed the alleged act, whether the defendant is at fault, whether the alleged act has caused damages and whether causality exists the alleged act and such damages.

 

1.19 Trial of foreign-related suits

 

In the trial of a case of copyright infringement, the court shall investigate whether the case is a foreign-related case pursuant to the relevant provisions of the Civil Procedure Law.

 

A foreign-related case of copyright infringement shall be tried pursuant to the relevant provisions of the General Principles of Civil Law, the General Provisions of Civil Law, the Civil Procedure Law, the Copyright Law, the Law on the Application of Laws in Foreign-related Civil Cases and the applicable judicial interpretations.

 

Chapter II. Investigation of Object of Rights

 

2.1 Investigation into whether the object constitutes a work

 

In the trial of a case of copyright infringement, the court shall investigate whether the object of copyright claimed by the plaintiff constitutes a work, and shall not determine such object constitutes a work solely on the ground that the defendant acknowledges the same.

 

In investigating whether the object of copyright claimed by the plaintiff constitutes a work, the court shall generally take the following factors into consideration:

 

(i) whether it is a creation made by a natural person in the field of literature, art and science;

 

(ii)whether it possesses originality;

 

(iii)whether it has certain form of expression;

 

(iv)whether it is reproducible.

 

2.2 Determination of originality

 

In determining the originality of an expression, the court shall generally take the following factors into consideration:

(i) whether the expression was independently created by the author;

 

(ii)whether the arrangement of expression manifests the author’s selection and judgment.

 

The value of an expression shall not be taken into consideration in determining its originality.

 

2.3 Determination of “completion of creation”

 

The creation of a work may be completed in whole or in part. If the part of a work that has been completed can wholly express the author’s thought in certain form, the creation of such part may be determined as completed.

 

2.4 Simple graphs, letters and phrases

 

Simple and common graphs, letters and phrases shall not be protected as works generally.

 

2.5 Titles and character names used in works

 

Titles and character names used in works shall not be protected as works generally.

 

2.6 Works of applied art

 

The part of a work of applied art that is original and has aesthetic qualities may be protected under the Copyright Law as a work of fine art.

 

Any protection given to the work under the Patent Law, the Trademark Law or the Anti-unfair Competition Law, as the case may be, shall in no way affect a claim for protection of the part thereof that is original and has aesthetic qualities under the Copyright Law.

 

2.7 Architectural works

 

Original artistic design of a building or exterior decoration of a building may be protected under the Copyright Law as an architectural work.

 

Building materials, method of construction and functional design shall not be protected under the Copyright Law.

 

Architectural design drawings may be protected under the Copyright Law to the extent they manifest the aesthetic appearance of the architectural work concerned and constitute a work of fine art.

 

2.8 Graphic works

 

Technical solutions, practical functions and method of operation contained in engineering design drawings and product design drawings, and objective geographic elements and facts contained in maps and schematic diagrams shall not be protected under the Copyright Law.

 

Architectural design drawings for construction use only shall be classified as engineering design drawings.

 

2.9 Model works

 

3D scale-down or scale-up models of an existing work shall not be classified as model works.

 

2.10 News report

 

News report containing factual news only shall not be protected under the Copyright Law.

 

News report created on the basis of factual news shall be protected under the Copyright Law to the extent it constitutes a work.

 

Factual news recorded and reported by means of photo, drawing, video or otherwise not in writing shall be protected under the Copyright Law to the extent they constitute a work.

 

 

2.11 Collated and annotated editions of ancient books

 

Collated and annotated editions of ancient books may be protected under the Copyright Law as works to the extent they possess originality.

 

Where an ancient book is only divided into paragraphs, punctuated, supplemented or corrected, the court shall determine whether it shall be protected under the Copyright Law as a work or a format design according to the specific circumstances of the case.

 

2.12 Video of variety show

 

Whether a video of variety show constitutes a work shall have nothing to do with whether the variety show itself constitutes a work.

 

If the video of variety show contains the elements of a work created in a manner similar to cinematographic production, it shall be protected under the Copyright Law.

 

2.13 Video of sports event

 

Whether a video of sports event constitutes a work shall have nothing to do with whether the sports event itself constitutes a work.

 

If the video of sports event contains the elements of a work created in a manner similar to cinematographic production, it shall be protected under the Copyright Law.

 

2.14 Online game

 

Static game images produced during online game play shall be protected under the Copyright Law to the extent they contain the elements of a work of fine art.

 

Continuously dynamic game images produced during online game play shall be protected under the Copyright Law to the extent they contain the elements of a work created in a manner similar to cinematographic production.

 

Online games may be protected under the Copyright Law as computer software.

 

2.15 Elements of online game

 

The following elements of an online game may constitute a work individually, including but not limited to:

 

(i)  characters, costumes, props, maps and settings which may constitute works of fine art;

 

(ii)title, ending and interlude music, theme songs and interludes which may constitute musical works;

 

(iii)lines, asides, narrations and introduction to game which may constitute literary works; and

 

(iv)title, ending and interlude cartoons and videos which may constitute works created in a manner similar to cinematographic production.

 

2.16 Object of performer’s rights

 

A performer shall enjoy the performer’s rights in each performance given by him/her, regardless of whether such performances have the same content.

 

Where a performance is given by two or more persons jointly, if such performance can be separated, each performer may enjoy the performer’s rights in his/her part of the performance individually, and if such performance cannot be separated, the performer shall jointly enjoy the performer’s rights in the performance.

 

Chapter III. Investigation of Ownership

 

3.1 Proof of ownership

 

Unless there is proof to the contrary, the ownership of a work shall be determined according to the name of author identified on the work.

 

The drafts, originals, legal publications, copyright registration certificates, certificates issued by competent certification institutions, right transfer contracts, statements of right holders in conformity with the relevant trade practices and the like presented by a party to the case may be admitted as prima facie evidence of the ownership.

 

3.2 Verification of author’s name

 

In judging whether a name identified as the author of a work is the real author’s name, the court shall give comprehensive consideration to, inter alia, the nature, type and form of expression of the work, trade practice and the public’s cognitive habit.

 

3.3 Corresponding relationship between a non-real name and the author’s identity

 

If the author’s name indicated on a work is not his/her real name, the party claiming his/her rights therein shall have the burden to prove the corresponding relationship between such name and the author’s identity.

 

In case of a work published on line the author’s name indicated on which is not his/her real name, if the party claiming his/her rights therein proves the corresponding relationship between such signature and the author’s identity by logging onto the relevant account or otherwise, he/she may be determined as the author.

 

3.4 Determination of ownership of an interim group’s work

 

In case of a work whose author is indicated as an editorial board or other interim group, the court shall determine that its members jointly enjoy the ownership of the work unless there is proof to the contrary.

 

3.5 Determination of ownership of digital pictures

 

If a party presents original digital files, publications and other evidences to prove his/her ownership of digital pictures, which are challenged by the other party, the court shall determine the ownership by giving comprehensive consideration to, inter alia, the publication of, cameras used to take and storage devices of such pictures, and information of the related electronic files.

 

3.6 Determination of ownership of works of employment

 

Where an entity, whether or not incorporated, claims its ownership of a work of employment pursuant to Article 16 Paragraph 2 Sub-paragraph 1 of the Copyright Law, the entity shall have the burden to prove such work was created mainly using its materials and technology.

 

3.7 Determination of ownership of commissioned works

 

The ownership of a commissioned work shall be determined according to the relevant service contract. In the absence of the relevant or express provisions in such service contract, the agent shall enjoy the copyright in the commissioned work.

 

With respect to the agreement between the principal and the agent regarding the exercise of moral rights, if such agreement does not violate the public order and good morals, the court may not hold such agreement as invalid, but shall conduct investigations according to the specific content of such agreement.

 

3.8 Ownership of works created using elements or raw materials of folk literature or art

 

Where an author creates an original work using elements or raw materials of any folk literature or art, the author shall enjoy copyright in the work, provided that he/she shall indicate the source of raw materials.

 

3.9 Authorship of phonograms

 

The information of producer, recorder or other civil subjects marked with as clearly set out on a recording presented by a party to the case may be admitted as prima facie evidence that he/she is the producer of the phonogram unless there is proof to the contrary.

 

In the absence of other evidence, the person owning the copyright as indicated on the phonogram may not be determined as the producer of the phonogram.

 

3.10 Determination of ownership involving multiple licenses or assignments

 

Where a copyright owner grants any copyright or license to an assign or licensee by contract, the copyright owner may not dispose of the rights granted under the contract to any other person.

 

Where a copyright owner assigns or licenses the same right to a number of persons, if the order of grant of such right can be found out, the first assign or license shall enjoy the copyright or license, as the case may be, unless there is proof to the contrary.

 

Chapter IV. Determination of Infringement of Moral Rights

 

4.1 Right of publication and contract

 

Where a contract only provides for the exercise of the right of publication by the defendant, but does not provide for the method of publication, the plaintiff’s claim that the defendant’s method of publication constitutes an infringement on its right of publication shall be dismissed.

 

Where the plaintiff claims that the defendant’s method of publication of his/her works goes against his/her wishes, the plaintiff may institute an infringement action or a contract action.

 

4.2 Presumed consent to publication

 

Where an author transfers to another person the original of a work of fine art that has not been published, it can be presumed that the author has given consent to the publication of the work by the defendant by means of exhibition, unless otherwise agreed by the parties.

 

4.3 The right of publication is a one-off right

 

Even if a work is published without the consent of its copyright owner, after the work has been made public, the copyright owner’s claim that any other person’s use of the work constitutes an infringement on his/her right of publication shall be dismissed.

 

4.4 Right of authorship

 

An author shall have the right to decide whether or not identify him/her as the author or use his/her real name on his/her work, and shall have the same right in any derivative work of his/her work.

 

The failure of an author of a work to identify him/her as its author when the work is published for the first time shall not constitute a waiver of his/her right of authorship in the work.

 

4.5 Investigation of the method of attribution of authorship

 

In judging whether the right of authorship has been infringed in a case of disputes arising from the method of attribution of authorship, the court shall generally take the following factors into consideration: (i) whether the method of attribution of authorship is sufficient to inform the public of the relationship between the author and the work; (ii) whether the method of attribution of authorship conforms to the trade practice and the public’s cognitive habit; (iii) the type, characteristics and method of use of the work; and (iv) whether there’s any agreement between the parties involved.

 

4.6 Exercise of the right of authorship in works of employment

 

The right of authorship in a work of employment shall be owned by its author, and any claim of infringement of the right of authorship lodged by the entity (whether or not incorporated) shall be dismissed.

 

4.7 Use of content of a work and infringement of the right of authorship

 

Whether the defendant’s act constitutes an infringement of the right of authorship shall be determined on the basis of the fact whether the defendant has directly used the content of the work involved.

 

4.8 Judgment on infringement of the right of integrity of protected works

 

In judging whether the right of integrity of a protected work has been infringed, the court shall give comprehensive consideration to, inter alia, whether the defendant has been authorized to use the work, the degree of modification to the work by the defendant, and whether the act of the defendant has caused damages to the work or the author’s reputation.

 

After an author has licensed or assigned the copyright in his/her work to another person, the user may make reasonable modifications to the work according to the nature, purpose and method of use of the work.

 

In judging whether any modification to a work is reasonable, the court shall give comprehensive consideration to, inter alia, the type, characteristics, pattern of creation and method of use of the work, applicable policies, agreement between the parties involved, trade practices and whether such modification has caused damages to the work or the author’s reputation.

 

Chapter V. Determination of Infringement of Property Right

 

5.1 Acts subject to the right of reproduction

 

Any act that reproduces a plane work into another plane or 3D work, or a 3D work into another plane or 3D work without making any original effort shall be deemed as reproduction.

 

The construction of an architectural work based on architectural design drawings shall be deemed as reproduction.

 

The construction or production of any non-copyrightable project or product based on engineering design drawings or product design drawings shall not be deemed as reproduction.

 

Where any person reproduces another person’s work without permission but has not distributed or otherwise disseminated the work, his/her act shall constitute an infringement of the right of reproduction, unless otherwise provided by the law.

 

5.2 Acts subject to the right of distribution

 

Any act that makes the original or copy of a work available to the public by sale or donation shall be subject to the right of distribution, even if such act is not conducted for profit.

 

5.3 Exhaustion of the right of distribution

 

Where the ownership of the original or authorized legal copy of a work has been transferred for the first time by sale or donation with the permission of its copyright owner, the re-distribution of such original or copy by any other person shall not constitute an infringement of the right of distribution.

 

5.4 Determination of infringement of the exclusive right of publication

 

In respect of a work in which another person enjoys exclusive right of publication, publication of the whole work or any substantial part thereof, or another work with the same or substantially similar content as the said work with only difference in the arrangement of content, in each case without permission, shall constitute an infringement of the exclusive right of publication.

 

5.5 Judgment on the duty of reasonable care by a publisher

 

In judging whether a publisher has performed his/her duty of reasonable care, the court shall give comprehensive consideration to, inter alia, the popularity of the work that the plaintiff petitions to protect, type of the alleged infringing publication, degree of similarity between the work and the publication and the proportion that the alleged infringing content constitutes in the work that the plaintiff petitions to protect or the alleged infringing work, as the case may be.

 

5.6 Judgment on failure of a publisher to perform the duty of reasonable care

 

A publisher may be determined as having failed to perform his/her duty of reasonable care if:

 

(i)         the name of the author of the alleged infringing work as indicated in the relevant publication contract is different from the name of author indicated on the publication;

 

(ii)       the alleged infringing work is a derivative work, but the publisher fails to examine whether its author has been granted a license by the copyright owner of the original work when executing the contract with the author;

 

(iii)      a large part of the content of the alleged infringing work is identical to a prior work with relatively high popularity; or

 

(iv)     the publisher can otherwise be determined as having failed to perform his/her duty of reasonable care.

 

5.7 Judgment on the performance of the duty of reasonable care by a publisher

 

A publisher may be determined as having performed his/her duty of reasonable care if:

 

(i)         the publisher has been authorized by the author to publish the alleged infringing work, but is unaware of the fact that the author has already permitted another person to publish the work or transferred the exclusive right to publish the work to another person, though such other person has not yet published the same;

 

(ii)       the author has not notified the publisher of the fact that his/her work is a derivative work and the original work has not yet been published prior to the publication thereof, and the publisher is unable to judge whether the work is a derivative work;

 

(iii)      the alleged infringing work is a work of employment, collective work or joint work, but the author has not notified the publisher of the process of creation thereof truthfully prior to the publication thereof, and the publisher is unable to know the process of creation from other sources or judge whether the work is a work of employment, collective work or joint work;

 

(iv)     the alleged infringing work has an entire license chain, and the identity of the licensor and the licensing documents are true and lawful;

 

(v)       the publisher can otherwise be determined as having performed his/her duty of reasonable care.

 

5.8 Acts subject to the performance right

 

The acts subject to the performance right include live performance and mechanical performance. Live performance means any performance given by a performer directly to the audience on site. Mechanical performance means public communication of any performance by means of machine, equipment or otherwise. However, the following circumstances shall not be subject to the right of (mechanical) performance, and shall be governed by other relevant provisions of the Copyright Law: (i) any wireless communication of the performance of a work by a radio or TV station, or any subsequent communication of the performance by wire or rebroadcasting; (ii) any show of the performance of a work by interactive means on the Internet; or (iii) any show of any film work of any work created in a manner similar to cinematographic production by means of projector.

 

5.9 Acts subject to the right of showing

 

Showing means publicly showing a work of fine art, photo, film or any work created in a manner similar to cinematographic production by means of projector, slide projector or other technical device.

 

Where the defendant publicly shows a film or any other work originating from the Internet to the audience at the site by means of projector or any other device without permission, his/her act shall constitute any infringement of the right to show, unless otherwise provided by the law.

 

5.10 Acts subject to the broadcasting right

 

Acts subject to the broadcasting right include:

 

(i)         wireless communication of a work;

 

(ii)       communication by wire or by rebroadcasting of the broadcast of a work; and

 

(iii)      public communication by loudspeaker or analogous instruments of the broadcast of a work.

 

However, any direct communication of a work by wire shall not be subject to the broadcasting right, and shall be governed by other relevant provisions of the Copyright Law.

 

5.11 Broadcasting right and right of broadcasting organizations

 

The owners of the broadcasting right are copyright owners, while the owners of the right of broadcasting organizations are radio stations and TV stations.

 

5.12 Acts subject to the right of adaptation

 

Adaptation means such act in which an author uses the expressions of an original work in his/her alleged infringing work without permission, and creates a new work possessing originality.

 

Where the author only uses any non-original expressions of the original work, the claim lodged by the copyright owner of the original work that such act constitutes an infringement of his/her right of adaptation shall be dismissed.

 

5.13 Adaptation and style of work

 

Changes in the genre or type of a work shall not be considered as essential conditions of the infringement of the right of adaptation. Where any person adapts a work of another person into a work of the same genre without permission, Article 5.12 of these Guidelines may be referred to in determining whether his/her act constitutes an infringement of the right of adaptation.

 

5.14 Adaptation and reproduction

 

Where an author uses the expressions of an original work in his/her alleged infringing work without permission, and his/her work does not constitute a new work, such act shall be classified as reproduction, and the claim lodged by the copyright owner of the original work that such act constitutes an infringement of his/her right of adaptation shall be dismissed.

 

5.15 Ownership of adapted works and exercise of right

 

The copyright in an adapted work re-created on the basis of an original work shall be vested in the adapter, who shall have the right to prohibit others from using the adapted work.

 

The exercise of copyright by the adapter shall be subject to consent of the copyright owner of the original work. Any use of the adapted work by any other person shall be subject to consent of both the copyright owner of the adapted work and the copyright owner of the original work.

 

5.16 Right of compilation

 

The right of compilation in a compilation work shall be vested in the respective copyright owners of the works included therein, rather than the compiler thereof.

 

5.17 Acts subject to the right of compilation

 

Compilation means selecting and compiling certain works or parts thereof into a new work.

 

5.18 Application of miscellaneous provisions

 

In the application of Article 10 Paragraph 1 Sub-paragraph 17 of the Copyright Law “other rights enjoyed by the copyright owner”, the court shall generally take the following factors into consideration:

 

(i)  whether the alleged infringement falls within the scope of protection under Article 10 Paragraph 1 Sub-paragraphs 1 through 16 of the Copyright Law;

 

(ii)  if the alleged infringement is not stopped, whether the normal exercise of the rights already established under the Copyright Law will be affected;

 

(iii)  if the alleged infringement is stopped, whether it will lead to a material imbalance among the interest of the creator, disseminator and the public.

 

Chapter VI. Determination of Infringement of Neighboring Rights

 

6.1 Method of identification of performers

 

A method of identification of a performer shall indicate the relationship between the performer and his/her performance. Where a party disputes the method of identification of a performer, the court shall make the judgment by giving comprehensive consideration to, inter alia, the characteristics of the performance, method of dissemination and trade practices.

 

A performer shall be deemed to have been identified if:

 

(i)         his/her name is set out on the performance advertisement, bulletin board, programme schedule or stage photos published on the relevant literary and artistic publication;

 

(ii)       his/her name is introduced by the host before or after his/her performance;

 

(iii)      his/her name is broadcasted by the relevant radio or TV station; or

 

(iv)     his/her name is indicated in the captions on the web cache.

 

6.2 Film works and performer’s right

 

Any claim lodged by a performer of his/her property right in a film work or any work created in a manner similar to cinematographic production shall be dismissed.

 

6.3 Right of producer of audio & video recordings

 

Unless otherwise provided by the law, production of any audio & video recording by using any copyrighted work of another person without permission shall constitute a copyright infringement, and use of such audio & video recording without the permission of its producer shall constitute an infringement of the right of producer of audio & video recordings.

 

If the defendant duplicates any audio recording of another person without permission, or compiles and produces a new audio recording on the basis of such duplicate and then distributes the same, he/she shall be determined as having infringed both the right of related performers and the right of the producer of the original audio recording.

 

6.4 Proof of same sound source

 

Where the parties have disputes about whether an alleged infringing audio recording originates from the infringed audio recording claimed by the plaintiff, the plaintiff shall have the burden to prove the two audio recordings have the same sound source.

 

If the plaintiff proves that the two audio recordings have the same performer, words, music and arrangement of songs, and other elements, the court shall determine that the two audio recordings have the same sound source, unless there is proof to the contrary.

 

6.5 Rebroadcasting right of broadcasting organizations

 

The rebroadcasting right of broadcasting organizations shall be limited to cable retransmission and rebroadcasting, and shall not cover retransmission via the Internet.

 

6.6 Scope of protection of the exclusive right of format design

 

Where the defendant publishes the same work using the format design identical or substantially similar to that of the plaintiff, the plaintiff’s claim of infringement of his/her exclusive right of format design may be upheld.

 

Dissemination of any scanned copy of a book, newspaper or magazine on the Internet shall constitute an infringement of the exclusive right of format design.

 

Chapter VII. Investigation of Defense

 

7.1 Content of defense

 

The defense presented by a defendant generally includes the following:

 

(i)         the object to which the plaintiff claims his/her right is not a work within the scope of Article 3 of the Copyright Law;

 

(ii)       the object to which the plaintiff claims his/her right falls within Article 5 of the Copyright Law;

 

(iii)      the right claimed by the plaintiff has exceeded the period of protection;

 

(iv)     the plaintiff or the defendant is ineligible as a subject;

 

(v)       the alleged infringement is not subject to the right claimed by the plaintiff;

 

(vi)     the alleged infringing work has a legal origin;

 

(vii)    the defendant has been duly authorized to use the plaintiff’s work;

 

(viii)  the alleged infringement shall be deemed as reasonable use or act with statutory license; or

 

(ix)     other reasons.

 

7.2 Principle of investigation of defense

 

The defense stated in Items 1 through 5 of Article 7.1 shall be investigated regardless of whether it is presented by the defendant.

 

With regard to the defense stated in Items 6 through 8 of Article 7.1 presented by the defendant, the defendant shall have the burden of proof.

 

7.3 Limited expression

 

Where the defendant proves that the expression of the alleged infringing work is identical or substantially similar to that of the infringed work claimed by the plaintiff due to the fact that the form of expression is very limited, his/her claim of “limited expression” may be upheld.

 

7.4 Necessary scene

 

Where the defendant proves that the expression of the alleged infringing work is identical or substantially similar to that of the plaintiff’s work due to the fact that a scene must be described or a scene design must be used in expressing a theme, his/her claim of “necessary scene” may be upheld.

 

7.5 News on current events

 

Where the plaintiff proves that his/her work is created on the basis of purely factual news, the defendant’s claim that the plaintiff’s work shall be classified as news on current events and not be protected under the Copyright Law shall be dismissed.

 

7.6 Public domain

 

Where the defendant proves that the part of expression of the alleged infringing work identical or substantially similar to that of the plaintiff’s work originates from the public domain, his/her claim of “legal origin of creation” may be upheld.

 

7.7 Other prior works

 

Where the defendant proves that the part of expression of the alleged infringing work identical or substantially similar to that of the plaintiff’s work originates from other prior works, his/her claim of “legal origin of creation” may be upheld.

 

7.8 Independent creation

 

Where the defendant proves that though certain expression of the alleged infringing work is identical or substantially similar to that of the plaintiff’s work, it is a pure coincidence resulting from independent creation on the same theme, his/her claim of “independent creation” may be upheld.

 

7.9 Legal authorization

 

Where the defendant proves that he/she has been legally authorized to use the alleged work, his/her claim of “use with legal authorization” may be upheld.

 

7.10 Personal use

 

Where the defendant makes available any work to others through the Internet without permission, his/her claim that it is reasonable “use of a published work of another person for personal study, research and appreciation” shall be dismissed.

 

7.11 Appropriate quotation

 

In judging whether an alleged act is “appropriate quotation”, the court shall generally take the following factors into consideration:

 

(i) whether the work quoted has been published;

 

(ii) whether the quotation is for the purpose of introducing and commenting on the work or explaining certain issues;

 

(iii) whether the proportion that the content quoted constitutes in the alleged infringing work is appropriate; and

 

(iv) whether the quotation will affect the normal use of the work quoted or damage the legitimate interest of its right holder.

 

7.12 Use in classroom teaching and scientific research

 

Where the defendant translates or reproduces a published work of another person and uses the same in any for-profit education or training course offered to the public, his/her claim that it is reasonable use within the meaning of Article 22 Paragraph 1 Sub-paragraph 6 of the Copyright Law shall be dismissed.

 

7.13 Reprinting and extracts by newspapers

 

Where the alleged act is not reprinting or extract among newspapers, or is reprinting or extract among newspapers without indicating the author of the work reprinted or from which the extracts are made, or without paying any compensation to the author pursuant to the applicable regulations, the defendant’s claim of statutory license shall be dismissed.

 

7.14 Production of phonograms

 

Where the defendant proves that the alleged act is use of a musical work of another person contained in a legally produced phonogram for the purpose of producing his/her phonogram and he/she has paid compensation to that person, the defendant’s claim of statutory license shall be upheld, unless there’s evidence that the copyright owner of the musical work has declared that no one may produce any phonogram using the musical work.

 

Chapter VIII. Determination of Legal Liability

 

8.1 Exception to cessation of infringement

 

If the defendant’s cessation of infringement may violate the public order and good morals, or the principle of proportionality, the court may refrain from ordering the defendant to cease the infringement, instead, determine a high amount of damages according to the specific circumstances of the case or order the defendant to pay an equivalent consideration.

 

8.2 Principle of fault

 

The defendant shall be liable for damages to the extent he/she is at fault.

 

8.3 Principle for determining the amount of damages

 

The amount of damages shall be determined on the principle that such amount is sufficient to make up for the loss suffered by the right holder due to the infringement, unless otherwise provided by the law.

 

Where the defendant only infringes on moral rights, the court shall not order him/her to assume the liability for damages generally.

 

8.4 Method for determining the amount of damages and order of application

 

In determining the amount of damages, the following order shall apply: actual loss of the right holder, illegal proceeds of the infringer and statutory damages.

 

If the actual loss of the right holder or illegal proceeds of the infringer cannot be accurately proved, the court may determine the amount of damages in its discretion according to the evidences available, which may be higher than the maximum statutory damages.

 

If the actual loss of the right holder or illegal proceeds of the infringer cannot be accurately proved, and the amount of damages cannot be reasonably determined, the statutory damages shall apply.

 

8.5 Actual loss of the right holder

 

In calculating the actual loss of the right holder, the following methods may be used:

 

(i)actual loss of profit that the right holder would have reasonably expected in the absence of the infringement, unless the right holder proves that he/she can make a higher profit;

 

(ii) loss of expected profit arising from the inability to perform or difficulty in normally performing the relevant license contract of the right holder as a direct result of the infringement;

 

(iii)actual loss calculated by reference to the provisions of the National Copyright Administration regarding author’s remuneration;

 

(iv)reasonable license fee;

 

(v)the product of the reduced sales volume of the copies of the right holder multiplied by the unit profit of such copies;

 

(vi)the product of the sales volume of the alleged infringing copies multiplied by the unit profit of such copies that can be earned by the right holder; and

 

(vii)other methods.

 

8.6 Illegal proceeds of the infringer

 

The illegal proceeds of the infringer shall generally be calculated according to the profit earned by the infringer from his/her infringement. If the evidences available prove that the infringer commits the infringement maliciously which causes serious consequences, the illegal proceeds may be directly calculated according to the operating revenue earned by the infringer from his/her infringement.

 

8.7 Spoliation of evidence

 

Where it is difficult to determine the actual loss of the right holder, but the right holder presents prima facie evidence for the illegal proceeds of the infringer, while the main account books and other information relating to the infringement are in the possession of the infringer, the court may order the infringer to provide the account books and other information relating to the infringement, and if the infringer fails to provide such account books and information or provides false account books and information, the court may determine the amount of illegal proceeds according to the claims lodged and evidence presented by the right holder.

 

8.8 Determination of the amount of damages in the court’s discretion

 

Where it is unable to accurately determine the actual loss of the right holder and the illegal proceeds of the infringer, in addition to the evidence presented by the parties involved, the court may take the following factors into consideration in determining the amount of damages in its discretion:

 

(i)the market price and circulation of the work to which the plaintiff claims his/her right and the normal profit margin of the industry such work belongs to;

 

(ii)the market price and circulation of the infringing product, the normal profit margin of the industry to which such product belongs, and the ratio of contribution of the work to such product;

 

(iii)type of the work to which the plaintiff claims his/her right and the profit model of the operators of the industry which such work belongs to, such as the effect of Internet traffic, page views, advertising revenue and other relevant factors on the damages; and

 

(iv)other factors.

 

8.9 Factors to be considered in determining the amount of statutory damages

 

The court shall generally take the following factors into consideration in determining the amount of statutory damages:

 

(i)type, popularity and market value of the work, popularity of the right holder and the originality of the work;

 

(ii)subjective fault of the defendant and the method, time, scope and consequence of his/her infringement; and

 

(iii)other factors.

 

8.10 Malicious infringement

 

In the application of statutory damages, if the defendant falls within any of the following circumstances, the court may uphold the plaintiff’s claim for damages or determine a high amount of damages within the limit of the maximum statutory damages:

 

(i)where the defendant has repeatedly infringed on the same work in the same manner;

 

(ii)where the defendant clearly knows that his/her business involves a large number of infringing works, performance or sound or visual recordings, but still commits, acquiesces in or encourages acts of infringement; or

 

(iii)other circumstances.

 

8.11 Reasonable expenses

 

Reasonable expenses include:

 

(i)attorney’s fee;

 

(ii)notarial charges and costs of investigation and collection of evidence;

 

(iii)auditor’s fee;

 

(iv)travel expenses;

 

(v)costs of printing of litigation documents; and

 

(vi)other reasonable expenses incurred by the plaintiff in stopping the infringement.

 

8.12 Proof of reasonable expenses

 

Where the plaintiff claims compensation for reasonable expenses, he/she shall submit the relevant contracts, invoices and other evidence. Expenses that the court determines through investigation as having been actually incurred and reasonable and necessary may also be included in the scope of compensation, even if the plaintiff fails to present sufficient proof thereof.

 

8.13 Compensation for reasonable expenses

 

The defendant shall compensate the plaintiff for his/her reasonable expenses incurred in safeguarding his/her rights. Such compensation shall be listed separately from the compensation for economic loss.

 

In determining the amount of damages using the method of statutory damages, the reasonable expenses incurred by the plaintiff in safeguarding his/her rights for which the defendant is liable will not be included in the amount of statutory damages.

 

8.14 Attorney’s fee

 

In determining the amount of attorney’s fee for which the defendant is liable, the court may take into consideration, inter alia, the amount of attorney’s fee actually paid, relevant provisions of the agency contract, specialization and complexity of the case, workload of the attorney and the result of judgment.

 

Where the defendant is liable for damages, the court may determine a reasonable amount of attorney’s fee for which the defendant is liable according to the degree of claim for damages upheld by the court.

 

Where the defendant is not liable for damages but is ordered to cease his/her infringement, make apologies and assume other civil liabilities, the court may determine a reasonable amount of attorney’s fee for which the defendant is liable according to the degree of claim for damages upheld by the court.

 

8.15 Conditions for the application of liability of apology

 

Where the defendant has infringed on moral rights or personal rights of performers, the court may order the defendant to assume the civil liability of apology.

 

The method and scope of apology shall be determined by taking into consideration the method and degree of infringement on moral rights and other relevant factors, and in conformity with the scope of damages caused by the infringement.

 

Where the infringement is of a minor nature, the court may order the defendant to make an apology in writing, and if the defendant has taken the initiative to make an apology during the proceedings which has already been documented, may refrain from ordering him/her to make any further apology.

 

8.16 Principle for the application of moral damages

 

Where the defendant has infringed on moral rights or personal rights of performers, resulting in severe moral damages, which are not adequately remediable by cessation of infringement, elimination of effect and apology, the court may order the defendant to pay compensation for moral damages.

 

Any claim for moral damages lodged by an entity, whether or not incorporated, shall be dismissed generally.

 

8.17 Determination of the amount of compensation for moral damages

 

Where the defendant is liable for moral damages, the amount of compensation for moral damages may be determined by giving comprehensive consideration to, inter alia, the degree of moral damages suffered by the plaintiff, the subjective fault, method, circumstances and scope of effect of the infringement.

 

Chapter IX. Determination of Infringement of the Right of Communication via the Internet

 

9.1 Infringement of the right of communication via the Internet

 

In cases of infringement of the right of communication via the Internet, the alleged infringement shall be classified into provision of content (including works, performance and sound and visual recordings) and provision of technical services.

 

9.2 Plaintiff’s burden of proof

 

Where the plaintiff claims that the defendant provides any work, performance or sound or visual recording individually or jointly with others, he/she shall have the burden of proof.

 

Where the plaintiff presents prima facie evidence that the work, performance or sound or visual recording in suit can be played, downloaded or otherwise obtained from the defendant’s website, but the defendant still claims that he/she has not provided such content, the defendant shall have the burden of proof.

 

The plaintiff may prove the content of the defendant’s website by notarial certificate or otherwise, provided that he/she shall ensure the completeness of the steps to collect the evidence and the related web pages.

 

9.3 Defendant’s burden of proof

 

Where the defendant claims that he/she only provides automatic connection, automatic transmission, information storage space, searching, link, file sharing technology or other network technology services of the like, he/she shall have the burden of proof, and if he/she fails to present sufficient proof thereof, his/her claim shall be dismissed.

 

The defendant shall be responsible for presenting evidence for the provider of the work, performance or sound or visual recording in suit or the relationship between him/her and the provider. If the defendant fails to present such evidence, but the plaintiff has presented prima facie evidence, the defendant’s claim that he/she has not provided the content shall be dismissed.

 

9.4 Finding of alleged infringement

 

An alleged infringement may be found out through inspection. The nature of an alleged infringement shall be judged according to the evidences available and using logic reasoning and empirical rule.

 

9.5 Comprehensive investigation

 

Where the plaintiff does not definitely claim that the defendant’s act constitutes a direct infringement of the right of communication via the Internet or aiding or abetting in infringement of the right of communication via the Internet, and the nature of such act still fails to be ascertained at the end of court debate, the court shall conduct a comprehensive investigation into the nature of the act according to the evidences available.

 

9.6 Direct infringement

 

Provision of any work, performance or sound or visual recording individually or in cooperation with others without permission shall constitute a direct infringement of the right of communication via the Internet.

 

If there are subjective communications among the defendants or between the defendants and others for the purpose of joint provision of the work, performance or sound or visual recording in suit, and they have taken actions to realize such subjective communications, the court may determine that their act constitutes an act described in the preceding paragraph.

 

9.7 Cooperation in infringement

 

If there’s any agreement or other evidence reflecting an intent of cooperation among the defendants or between the defendants and others, or the evidences available prove close links among the parties involved in content cooperation, benefit sharing and other aspects, the court may determine that there are subjective communications among the parties involved for the purpose of joint provision of the work, performance or sound or visual recording in suit, unless the defendants prove that they only provides technical service according to the objective need of technological or business model.

 

9.8 Aiding or abetting in infringement

 

The defendant shall be determined as having aiding or abetting in infringement in the capacity of a network technology service provider only when there exists an act of direct infringement.

 

9.9 Fault in aiding or abetting in infringement

 

The defendant shall be liable for infringement due to aiding or abetting in infringement if he/she “knew” or “should have known” subjectively, where “knew” means that the defendant actually knew the existence of the infringement, and “should have known” means that the defendant should have been aware of the infringement due to the existence of evident infringement.

 

When judging the fault described above, the court shall take into consideration the foreseeability of and the scope foreseeable by the network technology service provider, and make a distinction between the foreseeability of ordinary person and a professional.

 

9.10 Determination of provision of information storage space service

 

Where the defendant claims that he/she provides information storage space service, the court shall generally take the following factors into consideration in determining whether his/her claim should be upheld:

 

(i)whether the evidence presented by the defendant can prove that his/her website has the function of providing information storage space service to service objects;

 

(ii)whether the relevant content of the defendant’s website clearly indicates the provision of  information storage space service to service object;

 

(iii)whether the defendant can present the user’s name, registered IP address, time of registration, IP address of uploading, contact information, time of uploading, information uploaded and other information in respect of the persons uploading the information; and

 

(iv)other factors.

 

9.11 Judgment on whether an information storage space service provider should have known

 

Where an information storage space service provider meets all of the following conditions, he/she may be determined as “should have known”:

 

(i)where he/she should have been reasonably aware of the dissemination of the work, performance or sound or visual recording in suit through his/her storage space; and

 

(ii) where he/she should have been reasonably aware of the provision of the work, performance or sound or visual recording in suit by the network user without the permission of the right holder.

 

9.12 Judgment on whether an information storage space service provider should have known

 

In the event of any of the following, the court may presume that an information storage space service provider should have been reasonably aware of the dissemination of the work, performance or sound or visual recording in suit through his/her storage space, unless there is proof to the contrary:

 

(i)where the work, performance or sound or visual recording in suit or related information appears on the home page of the website, respective home pages of the relevant sections, other main pages or other noticeable positions;

 

(ii)where the information storage space service provider takes the initiative to select, edit, modify, arrange or recommend the theme or content of or set up any special chart for the work, performance or sound or visual recording in suit; or

 

(iii)other circumstances.

 

9.13 Judgment on whether an information storage space service provider should have known

 

In the event of any of the following, the court may presume that an information storage space service provider should have been reasonably aware of the provision of the work, performance or sound or visual recording in suit by the network user without the permission of the right holder, unless there is proof to the contrary:

 

(i)where the network user provides any cinematographic or musical work, performance or sound or visual recording that is produced by professionals and with complete content, or any hit cinematographic work or any other hot work, performance or sound or visual recording;

 

(ii)where the network user provides any cinematographic or musical work, performance or sound or visual recording that is in process and should not be permitted by its producer to be disseminated according to convention; or

 

(iii)other evident facts of infringement.

 

9.14 Determination of provision of linking service

 

Where the defendant proves any of the following, the court may preliminarily determine what he/she provides is a linking service:

 

(i)the work, performance or sound or visual recording in suit is shown on a third-party website redirected from the defendant’s website;

 

(ii)though the work, performance or recording in suit is shown on the defendant’s website, but the evidence presented by the defendant is sufficient to prove that the work, performance or sound or visual recording in suit is placed on a third-party website; or

 

(iii)other circumstances.

 

The court shall not determine what the defendant provides is a linking service solely based on the watermarks on the frames shown, or icons or words about the source of film.

 

9.15 Judgment on whether a linking service provider should have known

 

In the event of any of the following, a linking service provider may be determined as “should have known”:

 

(i)where the linking service provider takes the initiative to select, edit or recommend the theme or content of the linked work, performance or sound or visual recording in suit, so that the public can directly download, view or otherwise obtain it from the website on which the link is placed;

 

(ii)where the linking service provider sets a directional link and the linked website evidently engages in infringement by providing the work, performance or sound or visual recording in suit without permission; or

 

(iii)other circumstances.

 

9.16 Setting links by destroying or avoiding technical measures

 

In case of setting links by destroying or avoiding technical measures, the plaintiff’s claim for the rights under Article 10 Paragraph 1 Sub-paragraph 12 may be upheld according to the specific circumstances of the case.

 

9.17 Relationship between Article 36 of the Tort Liability Law and the safe harbor clause

 

Paragraphs 2 and 3 of Article 36 of the Tort Liability Law set forth the essential conditions of tort liability of network service providers.

 

To the extent that the provisions of Articles 20, 21, 22 and 23 of the Regulations on the Protection of the Right of Communication via the Internet regarding exclusion of the liability of a network service provider for damages do not apply, the court shall judge whether the network service provider shall be liable for infringement under Article 36 of the Tort Liability Law.

 

9.18 Understanding of “change”

 

For the purpose of Article 22 of the Regulations on the Protection of the Right of Communication via the Internet, “change” means any change in a work, performance or sound or visual recording provided by a service object.

 

In case of any of the following, the work, performance or sound of visual recording provided by the service object shall not be deemed to have been “changed”:

 

(i)where only the storage format of the work, performance or sound or visual recording is changed;

 

(ii)where only digital watermark or other website logo is put on the work, performance or sound or visual recording; or

 

(iii)where only advertisement is placed before the start or at the end of or inserted in the work, performance or sound or visual recording.

 

9.19 Understanding of “directly obtain economic benefit”

 

Where a network service provider collets standard service fees on his/her users for information storage space service on the basis of time, traffic or otherwise, he/she shall not be deemed to have “directly obtained economic benefit from service objects as a result of provision of works, performance or sound or visual recordings” under Article 22 Paragraph 4 of the Regulations on the Protection of the Right of Communication via the Internet.

 

General advertising fee collected by a network service provider for the information storage space service provided by him/her shall not be deemed as economic benefit directly obtained by him/her.

 

9.20 Essential conditions for a linking service provider to enter the safe harbor

 

A network service provider of search and linking service shall be exempted from the liability for damages pursuant to Article 23 of the Regulations on the Protection of the Right of Communication via the Internet only when the following two conditions are satisfied:

 

(i)he/she did not know and should not have known that the linked work, performance or sound or visual recording is an infringing work; and

 

(ii)he/she has immediately broken the link to the infringing work, performance or sound or visual recording after receiving the notice thereof from the right holder.

 

9.21 Determination of notice

 

Any notice sent by a right holder to a network service provider of information storage space, search, linking or other service shall conform to the provisions of Article 14 of the Regulations on the Protection of the Right of Communication via the Internet.

 

Where the notice sent by the right holder does not indicate the IP address of the alleged infringing work, performance or sound or visual recording, but the information provided in the notice is sufficient to enable the network service provider to find the accurate position of the alleged infringing work, performance or sound or visual recording, the right holder shall be deemed to have sent the notice.

 

In judging whether the accurate position of the alleged infringing work, performance or recording can be found, the court shall take into consideration, inter alia, type of service provided by the network service provider, file type of the work, performance sound or visual recording the link to which is required by the right holder to be deleted or broken, and whether the title of the work, performance or sound or visual recording is specific.

 

9.22 Determination of web cache

 

Where a network service provider, in providing search service, generates copies of a work, performance or sound or visual recording in the form of “web cache” on his/her server and makes the same available to the public through the Internet, so that the public can obtain the work at such time and place as designated, his/her act shall constitute provision of content.

 

Any claim of non-infringement lodged by a web cache service provider on the ground of search, link or system cache shall be dismissed.

 

The determination that the provision of web cache service constitutes an infringement shall have nothing to do with whether the content of the source webpage of such web cache is infringing.

 

9.23 Determination of reasonable use of web cache

 

In judging whether the provision of a webpage web cache does not affect the normal use of related work or unreasonably damage the legal right and interest owned by the right holder in the work, the court may give comprehensive consideration to the following factors:

 

(i)main purpose of the provision of the webpage web cache;

 

(ii)whether the plaintiff is able to minimize the damages by notice of deletion or otherwise;

 

(iii)whether the plaintiff has expressly notified the defendant to delete the webpage web cache;

 

(iv)whether the defendant has failed to take any measures after becoming aware of the suspected infringement;

 

(v)whether the defendant has directly earned a profit from the provision of the webpage web cache; and

 

(vi)other relevant factors.

 

9.24 Scheduled broadcasting

 

Where a network service provider publicly broadcasts a work via the Internet according to a pre-determined schedule without permission, his/her act shall not constitute an infringement of the right of communication via the Internet, but any claim lodged by the copyright owner of the work against the network service provider for infringement under Article 10 Paragraph 1 Subparagraph 17 of the Copyright Law shall be upheld.

 

9.25 Simultaneous retransmission

 

Where a network service provider simultaneously retransmits a work via the network without permission, any claim lodged by the copyright owner of the work against the network service provider for infringement under Article 10 Paragraph 1 Subparagraph 17 of the Copyright Law shall be upheld.

 

9.26 Types of technical measures

 

For the purpose of Article 26 of the Regulations on the Protection of the Right of Communication via the Internet, technical measures mean the technical measures to control the access, view or use in respect of works, performance and sound and visual recordings for the purpose of protecting the legitimate interest of the right holders under the Copyright Law.

 

The technical measures for the purpose of the following shall not be protected under the Copyright Law:

 

(i)realizing bundling sale of such work, performance or sound or visual recording with certain product or service;

 

(ii)setting different prices for such work, performance or sound or visual recording by region;

 

(iii)destroying the computer systems of the users who use such work, performance or sound or visual recording without permission; or

 

(iv)otherwise irrelevant to the legitimate interest of the right holder under the Copyright Law.

 

9.27 Criteria for determination of technical measures

 

The technical measures protected under the Copyright Law shall be valid. Whether a technical measure is valid shall be determined on the basis of whether an ordinary user is able to avoid or crack it using a general method. The validity of a technical measure shall not be affected if it can be avoided or cracked by a skilled person by some means.

 

9.28 Jurisdiction over cases involving goods purchased on line

 

In case of any alleged infringing goods purchased via the Internet, the place of infringement shall not be determined solely on the basis of the place of receipt designated by the buyer.

 

9.29 Determination of website operator

 

The operator of a website is the operator stated in the registration information of the website or indicated on the website. If the operator stated in the registration information of the website is different from the one indicated on the website, such operators may be determined as co-operators, unless there is proof to the contrary.

 

Chapter X. Determination of Infringement of Copyright in Cinematographic Works

 

10.1 Titles of cinematographic works

 

Titles and character names of cinematographic works with high popularity may be protected under the Anti-unfair Competition Law to the extent the relevant conditions are satisfied.

 

10.2 Protection of character images

 

Character images in cinematographic works may be protected under the General Rules of Civil Law and the General Provisions of Civil Law to the extent they fall within the scope of protection of the right of portrait, and be protected under the Copyright Law to the extent they constitute a work of fine art.

 

10.3 Foreign cinematographic works having not been approved by the administrative authorities

 

The plaintiff’s claim for protection of a foreign cinematographic work may not be dismissed only on the ground that such work has not been approved by the domestic administrative authorities.

 

10.4 Determination of ownership of cinematographic works

 

Unless there is proof to the contrary, the copyright owner of a film, TV show or other cinematographic work can be determined according to the copyright information set out in the work.

 

In the absence of such copyright information, the presenter indicated on the beginning or closing credits may be determined as the copyright owner, or in the absence of such presenter, the producer may be determined as the copyright owner, unless there is proof to the contrary.

 

Production license, shooting license, distribution license, license of public show and other licenses issued by administrative authorities may be referred to in determining the ownership of copyright, but may not be taken as the basis for determining the ownership of copyright individually, in the absence of other supporting evidence.

 

10.5 Validity of certificates issued by foreign institutions

 

Certificates of ownership of cinematographic works issued by foreign certification institutions approved by the national copyright administration may be admitted as prima facie evidence of the ownership of copyright, unless there is proof to the contrary.

 

10.6 Determination of alleged infringing content

 

The plaintiff shall explain the content of the work to which he/she claims his/her right, the content of the alleged infringing work and the corresponding relationship between the two works, and if a number of cinematographic works, dramas, novels and other works are involved, the relationship among such works.

 

10.7 Basic rule for determination of infringement

 

Where an alleged infringing work is identical or substantially similar to the relevant content of a prior work to which the plaintiff claims his/her right, and the defendant had or was likely to have access to the defendant’s prior work when he/she created the alleged infringing work, but the defendant is unable to prove or explain the legal source of the alleged infringing work, the court may determine that the defendant has infringed on the plaintiff’s copyright.

 

10.8 Judgment on “access”

 

In judging whether the defendant had or was likely to have access to a prior work, the court shall generally take the following factors into consideration:

 

(i)whether the prior work has already been published; and

 

(ii)if the prior work has not been published, whether the author of the alleged infringing work or his/her affiliates and the author of the prior work have submitted contributions to or discussed about cooperation with each other.

 

If the expression of the alleged infringing work is identical or substantially similar to that of the prior work, so that the possibility of independent creation can be excluded, and the defendant fails to give a reasonable explanation, the court may presume according to the evidences available that the defendant had access to the prior work.

 

10.9 Comparison of expressions of works

 

The plaintiff shall submit an explanation or table of comparison between the prior work and the alleged infringing work, setting out the corresponding relationship between the relevant contents of the two works. If the defendant has any objection thereto, he/she shall explain his/her reason on a case by case basis or present proof to the contrary.

 

Where any party involved files a petition or deems it necessary, people with professional experience may be summoned to participate in the proceedings in the capacity of expert, and an expertise institution may be engaged to make comparisons of the expressions of the prior work and the alleged infringing work.

 

10.10 Judgment on “substantially similarity”

 

Whether a work is substantially similar to another work shall be judged in a comprehensive manner.

 

In judging whether a work is substantially similar to another work, the court shall examine the similarity in the choice, selection, arrangement and design of expression by the authors, and shall not make comparisons in theme, creativity, emotion and other mental aspects.

 

In judging whether a work is substantially similar to another work, the court shall generally take the following factors into consideration:

 

(i)similarity in lines and asides;

 

(ii)similarity in the setting and relationship of characters;

 

(iii)similarity in the logic arrangement of storylines;

 

(iv)whether there are the same errors in grammatical expression, logical relationship, historical facts or the like;

 

(v)whether there are the same special design of details;

 

(vi)whether the similar expressions in the two works are the key content of the work to which the plaintiff claims his/her right; and

 

(vii)other factors.

 

10.11 Judgment on “substantial similarity” between the works on the same historic theme

 

The thread and sequence of historical facts in the works created on the basis of the same historic theme fall in the category of thought.

 

Since it is inevitable to adopt certain events, characters, layout and scenes in the creation of works on a particular theme, the essential expressions of such theme are not protected under the Copyright Law.

 

In comparing works, priority shall be given to the investigation of whether the alleged infringing work uses any original expression of the prior work in describing the relevant history.

 

10.12 Parties liable for infringement of the right of adaptation

 

In case of an alleged infringing cinematographic work, its scriptwriter shall be liable for infringement of the right of adaptation, and the producer shall be jointly and severally liable for co-infringement if he/she has directly participated in the creation of scenario, or has not participated in the creation of scenario but there’s subjective fault on his/her part, unless there is proof to the contrary.

 

10.13 Parties liable for infringement of right of making cinematographic works

 

The producer of an alleged infringing cinematographic work who makes the same using the plaintiff’s work without permission shall be liable for infringement of the plaintiff’s right of making cinematographic works.

 

10.14 Right of making cinematographic works and right of integrity of protected works

 

Where a copyright owner has authorized another person to produce his/her work into a cinematographic work or any work created in a manner similar to cinematographic production, he/she shall be deemed to have given consent to necessary changes to his/her work. Changes made due to special means of artistic expression and the limitation of policies, technological level, shooting equipment or otherwise may be deemed as necessary changes.

 

Chapter XI. Determination of Infringement of Copyright in Computer Software

 

11.1 Typical circumstances of infringement of copyright in computer software

 

Unless otherwise provided, any of the following acts without the permission of the copyright owner shall constitute an infringement of copyright in computer software:

 

(i)Pure transmission: The defendant does not change the content of the computer software, and only makes the same available to the public by distribution of copies, transmission via the Internet or otherwise;

 

(ii)End user: The defendant does not change the content of the computer software, and only uses the same in commercial activities in the capacity of an end user;

 

(iii)Plagiarism: The defendant reproduces, alters or adapts the content of the plaintiff’s computer software and then makes it available to the public as a computer software developed by himself/herself;

 

(iv)Destruction of technical measures: The defendant intentionally avoids or destroys the technical measures adopted by the copyright owner for protecting his/her computer software;

 

(v)Lease: The defendant permits others to temporarily use the computer software and receives compensation therefor, except that the computer software is not a main subject matter of lease; and

 

(vi)Other disputes over infringement of computer software.

 

11.2 Fact finding in end user cases

 

In end user cases, the type, version and quantity of computer software used by the defendant may be found out by means of evidence preservation or inspection. If there are a large number of computers to be examined for the purpose of evidence preservation or inspection, the court may conduct a spot check with the consent of both parties, and have both parties confirm that the result of spot check, such as the type, version and proportion of infringing computers, may apply to the entire scope subject to examination.

 

The method of remote collection of evidence may also be adopted in end user cases, provided that the evidence obtained therefrom shall conform to the relevant provisions of the Civil Procedure Law.

 

11.3 Determination of infringement by end user of the right of reproduction

 

Where the defendant has not reproduced the plaintiff’s computer software, but knows that another person is reproducing the plaintiff’s computer software for him/her, and the defendant uses such computer software in his/her ordinary course of business, the court may determine that the defendant and such another person have jointly infringed on the right of reproduction in the plaintiff’s computer software.

 

11.4 Order of trial of plagiarism cases

 

A case of infringement of copyright in computer software involving plagiarism shall be tried in the following order:

 

(i)to determine the name and version of the computer software to which the plaintiff claims his/her right;

 

(ii)to determine the name and version of the alleged infringing computer software; and

 

(iii)to find out the relationship between the alleged infringing computer software and the plaintiff’s computer software.

 

11.5 Method of determination of software version in plagiarism cases

 

In a plagiarism case, the plaintiff shall clearly state the rights claimed by him/her and the name and version of the infringing computer software alleged by him/her.

 

If the plaintiff’s computer software has a number of versions, the court may elucidate that the plaintiff may select the most similar version as the version of computer software to which the plaintiff claims his/her right to the extent that the conditions of access are satisfied.

 

11.6 Comparison to determine “substantial similarity”

 

In making comparisons to determine “substantially similar”, the court shall make a comparison between the source program of the computer software to which the plaintiff claims his/her right and the source program of the alleged infringing computer software, or if the defendant refuses to provide the source program of the alleged infringing computer software, between the object program of the computer software to which the plaintiff claims his/her right and the object program of the alleged infringing computer software.

 

11.7 Corresponding relationship between source program and object program

 

Before making a comparison of source programs, the court shall investigate the corresponding relationship between the respective source programs and object programs of the computer software of the plaintiff and the defendant.

 

11.8 Determination of “substantial similarity”

 

Where the evidences available prove that the source program, files and other documents of the computer software to which the plaintiff claims his/her right are identical or substantially similar to the alleged infringing computer software, the two pieces of computer software may be determined as substantially similar to each other.

 

Where the defendant refuses to provide the source program of the alleged infringing computer software, but the plaintiff proves the source programs of the two pieces of computer software are identical or substantially similar to each other, or though they are not identical or similar to each other, but the source program of the alleged infringing computer software contains any special content of the computer software to which the plaintiff claims his/her right, or they are identical or substantially similar to each other in the results of software, including interfaces, operating parameters, database structure and the like, the two pieces of computer software may be determined as substantially similar to each other.

 

Supplementary Provisions

 

These Guidelines shall take effect from the date of promulgation. In case of any discrepancy between these Guidelines and any prior provisions promulgated by the Beijing High People’s Court, these Guidelines shall prevail.