In order to implement the decision-making and deployment of the Central Government and the Municipal Party Committee on strengthening the protection of intellectual property rights, build a high ground for international intellectual property protection, strengthen publicity on copyright protection, and enhance public awareness of copyright protection, the Shanghai Copyright Bureau recently released the top ten typical copyright cases in Shanghai 2022.The two cases represented by our lawyers Zhang Wenjie, Qiu Zhengtan, and Liao Di were both selected as the “Top Ten Typical Copyright Cases in Shanghai 2022”.

[Zhang Wenjie and Qiu Zheng Talk] The Case of Copyright Infringement and Unfair Competition of Sports Events at the Winter Olympics

[Zhang Wenjie, Liao Di] The Case of Copyright Infringement by Publishing Links to Works on Online Community Platforms

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Top Ten Typical Copyright Cases in Shanghai 2022
 

The Case of Copyright Infringement and Unfair Competition of Sports Events at the Winter Olympics

Case Type

Civil Case

Handling Unit

People’s Court of Pudong New Area, Shanghai

Recommending Unit

Shanghai Higher People’s Court

 Brief Introduction and the Trial results

    The 2022 Beijing Winter Olympics is the exclusive asset of the International Olympic Committee. China Central Radio and Television General Station (hereinafter referred to as CMG) was authorized to broadcast and display works or signals containing audiovisual footage of the Olympic Games through all media platforms in China, and the exclusive right to grant sublicense to others. CMG and its authorized subjects had the right to take legal measures against violations in their own name. The applicant CMG International Network Company (hereinafter referred to as CMG International Company) was authorized by CMG and enjoyed the right to disseminate, broadcast, and provide programs for the 2022 Beijing Winter Olympics to the public through information networks. The respondent Zhuhai Chuanghixin Network Technology Co., Ltd. (hereinafter referred to as Chuanghixin Company) is the operating entity of the “Mobile TV Live Broadcast Daquan” software. During the 2022 Beijing Winter Olympics, the software would provide the public with online viewing services for the Beijing Winter Olympics through the broadcast of TV channels such as CCTV5+.

    After hearing the case, the Pudong New Area People’s Court held that the following factors should be considered comprehensively in the examining the application for behavior preservation.1. Whether the applicant’s request has a factual basis and a legal basis. Since the applicant was legally authorized to exclusively enjoy the right to disseminate, broadcast, and provide the programs of the 2022 Beijing Winter Olympics to the public through the information network and the right to sub-authorization, and had the right to defend his rights, the effectiveness of the intellectual property rights he requests for protection was stable. Without permission, Chuanghaixin Company disseminates and broadcasts audio-visual works of the Beijing Winter Olympics events to the public through information networks, which had a greater possibility of infringement. 2. Whether failure to take behavioral preservation measures will cause irreparable harm to the applicant’s legitimate rights and interests. The Beijing Winter Olympics event program was a highly time-sensitive hit program with high economic value. The sued behavior occurred during the Beijing Winter Olympics. If Chuanghaixin Company failed to pay the corresponding consideration, it may plunder the economic interests that should be vested in the applicant and the relevant licensees, which may destroy the normal market competition order in the sports event program media industry, and damage the applicant’s market competition advantage, causing irreparable harm to the applicant. 3. Whether the adoption of behavioral preservation measures will lead to a significant imbalance in the interests of the parties. The sued behavior had had and was having a negative impact on the applicant, and the applicant’s legitimate rights and interests were at risk of being undermined. The application for the underlying behavior preservation was a reasonable measure to prevent the applicant’s interests from being continuously harmed or from expansion of the damage, and would not materially affect the normal operation of the “Mobile TV Live Broadcast Encyclopedia”. The purpose of the application was clear; the scope was appropriate; and the applicant had provided a guarantee. 4. Whether the adoption of behavioral preservation harms the public interests of society. If protective measures were taken, the relevant public can be guaranteed to watch the Beijing Winter Olympics through legal channels, obtain a better online viewing experience, which promotes the legal dissemination of the Beijing Winter Olympics without harming the public interest. In summary, the applicant’s application for the behavior preservation against Chuanghaixin Company meets the conditions for the people’s court to take pre-litigation behavior preservation measures and should be supported. Finally, the court ruled that the respondent Chuanghaixin Company immediately stop providing the 2022 Beijing Winter Olympics event programs on the “Mobile TV Live Broadcast Encyclopedia” operated by it during the 2022 Beijing Winter Olympics.

    After the ruling of the first instance was made, the party concerned did not apply for reconsideration, and the ruling has taken effect.

Expert Reviews

    This case is about pre-litigation ban against infringement of the copyright of the program of the 2022 Beijing Winter Olympics and acts of unfair competition. As a comprehensive international sports event, the Winter Olympics has great influence. The underlying “Mobile TV Live Broadcast Encyclopedia” mobile application provided the public with online viewing services for the events of the CMG without permission during the Beijing Winter Olympics. This illegal pirating behavior diverts the traffic to watch the event on the regular platform, dilutes the popularity of the event broadcast on the regular platform, and plunders the economic interests that should be vested in the right holder and related licensees. It may destroy the normal market competition order in the sports event program media industry and harm the applicant’s market competition advantage. Based on the timeliness and influence of sports event programs, after receiving the application from the right holder, the court focused on reviewing whether the applicant’s request had a factual basis and legal basis, and made a ruling on the pre-litigation behavior preservation within 48 hours. This not only stops the ongoing pirating of the Beijing Winter Olympics event programs in a timely manner but also prevents possible future pirating behavior. The quick and effective stopping of the infringing behavior achieved the purpose of intensifying the fight against infringement and unfair competition and increasing the infringer’s illegal costs. With the increasing number of intellectual property disputes, the preservation of intellectual property rights has received increasingly more attention as a preventive measure to protect civil rights, especially the preservation of pre-litigation acts, which gives the right holder a temporary and preventive emergency right protection and has played an important role in effectively protecting the legitimate interests of the parties. (Reviewer: Wang Mianqing, Professor, School of Intellectual Property, Shanghai University)

The Case of Copyright Infringement by Publishing Links to Works on Online Community Platforms

Case Type

Civil Case

 Handling Unit

First instance: Shanghai Putuo District People’s Court; Second instance: Shanghai Intellectual Property Court 

Recommending Unit

Shanghai Higher People’s Court
 

Brief Introduction and Trial Results

    The plaintiff, Beijing Iqiyi Technology Co., Ltd., was the producer of the hit youth inspirational variety show Youth With You Season 2 (hereinafter referred to as the underlying works), and enjoyed the exclusive right to online dissemination of information about the underlying works. The underlying works  had attracted widespread attention after being exclusively broadcast on its Iqiyi platform since March 12, 2020. The defendant Shanghai Touch Shadow Culture Communication Co., Ltd. has developed an app with live-action comics and picture drama sharing as content. In May 2020, during the popular broadcast of the underlying works, the plaintiff discovered that there were Baidu network disk sharing links of the underlying works. These links allowed users to watch the underlying works without logging in to the technology company’s video platform or buying the VIP membership. The plaintiff believed that the defendant, as the App operator, provided the underlying works without authorization, which violated the right of information network dissemination enjoyed by the technology company. Therefore, the plaintiff requested an order to compensate for economic losses and reasonable expenses totaling 1 million yuan. The defendant argued that the App provided a posting service which was not the type of service stipulated in the Regulations on the Protection of Information Network Dissemination. The infringing content in the case was posted by a network user.  Since the defendant was a non-network service provider, the defendant did expressly know or should know the posts containing infringing links posted by the user. Furthermore, the defendant deleted them in time after receiving the notice, and disclosed the identity information of the network user. Therefore, the defendant had fulfilled the relevant obligations of the platform, and should not be liable for compensation.

    The Court of first instance held that the defendant provided information such as the name, ID number and contact information of the network user. In the absence of evidence to the contrary, it can be determined that the underlying links were posted by the network user, and the defendant, as a network service provider, did not constitute direct infringement. The determination of whether the defendant constitutes an infringement should be combined with the defendant’s behavior, and the comprehensive judgment should be given based on whether the defendant should have known about the infringement of the network user and whether necessary measures were taken. First of all, from the perspective of the platform partition, the platform page has set up multiple zones such as “Water Zone” and “Resources”. The “Resources” zone was mainly for film and television and variety shows. The defendant should know that the content in this zone is more likely to cause infringement, but there was no evidence that it had taken reasonable measures to prevent infringement in addition to text and picture filtering. Secondly, judging from the significance degree of infringing information, the two underlying users had continuously released a large number of download links of film and television and variety shows for a period of time, and their content had far exceeded the scope of authorized sharing by ordinary users. At the same time, in order to facilitate user retrieval, resource publishers publish links with information such as the name and number of issues of film and television resources, and the underlying links were clearly marked “Youth With You Season 2” and “The latest issue”. Considering that the underlying works were still in a hit period at the time, and the popularity of the topic on the Internet were high, the defendant should have known that the content might be infringing. From the perspective of management measures, the defendant received a number of reports involving the “Resource Area”, and some of them involved the underlying network users. In this case, he did not take a risk warning on the account, but allowed it to continue to publish other infringing content, which objectively led to the infringement. In summary, the court found that the defendant was aware of the user’s infringement, but did not take reasonable measures, which constituted aiding the infringement. Therefore, the defendant should bear civil liabilities such as stopping the infringement and compensating for losses in accordance with the law. In the determination of economic losses, after having comprehensively considered the market value of the underlying works, the number and dissemination time of the underlying works, and the method of dissemination of the underlying works, the court ordered the defendant to compensate the plaintiff for economic losses and reasonable expenses of 300,000 yuan.

    The defendant was not satifisfied with the judgment of the first instance, and make an appeal. The Shanghai Intellectual Property Court rejected the appeal and upheld the original judgment. The judgment of the first instance has taken effect.

Expert Review

    With the diversification of online dissemination, network users’ publishment of download links of infringing works on online community platforms has become a new form of online copyright infringement. Since the online community platform does not belong to the four network service providers that provide automatic access, information storage, search, and linking stipulated in the Regulations on the Protection of the Right to Information Network Dissemination, the determination of the legal liabilities of the online community platform has become a judicial problem. In this case, the court of second instance clearly determined that even if the online community platform did not belong to the above four network service providers, it did not mean that it need not to bear the relevant tort liabilities. Online community platforms should still bear the obligation of attention of network service providers. If they are aware that network users’ use of network services to infringe on the right to information network dissemination and fail to take necessary measures such as deletion, blocking, or disconnection of links, they shall be deemed to commit an infringement. The judgment in this case accurately characterizes that the online community platform belongs to a network service provider, reasonably defines the judgment criteria for the platform’s “knowledge” under the new Internet communication method, which reflects the accuracy of judicial response to the new form of online communication. The judgment reasonably guides the online community platform to standardize the management of users’ posting of links to create a good network ecology. (Reviewer: Xu Chunming, Professor and Doctoral Supervisor, Shanghai School of International Intellectual Property, Tongji University)