Copyright is an important part of intellectual property rights. The most remarkable difference between the protection of copyright and that of trademark right and patent right is the automatic acquisition of copyright. The subject of copyright is not required to apply to any official authority for registration. Besides, if a recordal application is filed, the official authority has no need to make substantial examination. The copyright is acquired automatically since the works is created and completed. The “convenient” right production mode inevitably leads to the difficulty in the testification of rights——how to testify the completion date, completeness and author of works? This puts forward considerable challenge for party involved and courts. The fixation and preservation of evidence in copyright dispute case is a universal problem. In addition, China became a member state of Berne Convention on the Protection of Literary and Artistic Works (hereinafter referred to as Berne Convention) on Oct. 15th, 1992. The Berne Convention has got a total number of contracting parties of 177. Most countries around the world are members of it except Iran, Iraq, Laos, Ethiopia, and few other countries. In terms of Article 5 of the Berne Convention and Article 2 of Copyright Law of the People’s Republic of China, even though the works is created and completed outside China, in case the nationality or habitual residence of the author is a member state of Berne Convention, the author can be protected by the Copyright Law of China owing to this connection. Considering the prudent attitude of China’s judicial authority, the difficulty level of evidence collection and testification of copyright is further aggravated.
However, copyright dispute cases are not in the minority. Up to December 22nd, 2020, there were 31793 cases of civil procedure adjudication documents involved in copyright infringement in 2020 announced on the internet. Among such vast number of copyright dispute cases, which evidence is most effective for proving the ownership of copyright? In terms of Article 11 (1) and (4), the copyright in a work shall belong to its author. The citizen, legal person, or entity without legal personality whose name is indicated on a work shall, in the absence of proof to the contrary, be deemed to be the author of the work. In accordance with Article 7(1) of the Interpretation by the Supreme People’s Court on Some Issues Concerning the Application of Laws to the Trial of Copyright Civil Dispute Cases, manuscript, original copy, legal publication, copyright registration certificate, certificate issued by certification body and right acquisition contract provided by the party involved can be regarded as evidence. Even though civil procedure follows the rule of preponderant evidence, single evidence (which shall be direct evidence) can be deemed as effective in identifying facts of a case if such evidence satisfies the three major characteristics of legality, authenticity, and objectivity. However, the evidence types listed in the legal provision mentioned above shall meet the requirements of direct evidence, otherwise the single evidence shall not be adopted, and the party involved shall collect more evidence to reinforce and confirm such single evidence. Frankly speaking, the testification standard shall not be regarded as “strict”, but considering that in the civil procedure domain, testification responsibility follows the rule of claimer testification in case that there are no special regulations in laws, the evidence collection pressure of party involved is quite considerable.
Some may think that the problem mentioned above can be easily solved by applying to the Copyright Protection Center of China for a copyright certificate. But the fact is quite different. The legal force of copyright certificate is greatly inferior to that of trademark registration certificate and patent certificate. Even though the Copyright Protection Center of China, which is affiliated to the National Copyright Administration of the People’s Republic of China, is responsible for the works registration of mainland, Hong Kong, Macao, Taiwan and foreign authors or other copyright owners, the copyright registration adopts the voluntary registration rule and has no substantial examination, therefore, the registration is only used as preliminary evidence in solving copyright dispute. Whether the work is registered or not, the copyright of its author or other copyright owners shall not be affected. Thus, the traditional registration certificate, though issued by an authority body, has limited legal force in application.
Is there any other better method?
The answer is “yes”.
With the rapid development of the Internet and electronic information technology, applying the abundant achievements of electronic scientific and technological revolution in solving traditional copyright disputes is an effective way to improve procedural efficiency and guarantee the right realization of party involved timely, and an inevitable trend for administrative and procedural development. In recent years, 3 internet courts have been established successively in China. In terms of the Outlines of National Information Development Strategy and the 13th Five-year Plan for National Information Development, supporting judicial adjudication, litigation service and judicial administration with high information technology based on modern artificial intelligence and the principle of justice for people and sticking to the integration of judicial rules, structural reform and technological change has become a historical trend.
Since the traditional courts have been exploring actively and putting forward new ideas, and carrying out online trial depended on the internet and the big data, whether the technological advance will as well bring convenience for our intellectual property area which serves as the file leader of culture, art and technological innovation protection?
The answer is “yes” absolutely.
The evidence fixation mode of copyright internet infringement keeps advancing with the times and makes innovation constantly. Trustable time stamp is one of the ways. More and more party involved adopt trustable time stamp and more and more courts accept the force of evidence fixed by trustable time stamp.
Working principle of time stamp
Time stamp is not a fresh thing in the computer area, while in the legal area, particularly applying time stamp in copyright protection, it is quite unfamiliar for many people. The time stamp is the data generated by using digital signature technology. The objects of signature include original document information, signature parameter, signature time and so on. The time stamp system is used to generate and manage time stamp, which makes digital signature and generates time stamp for signature object to prove that the original document exists before the signature time. When using time stamp service, the major roles involved include: Time-Stamping Authoritor, Subscriber and the Relying Party of time stamp certificate. The major responsibility of the Time-Stamping Authoritor is to apply for time stamp certificate for a section of data to prove that such data exists before the application time of the time stamp. Any change of the data after the time point is traceable, which can prevent data falsification and cheating. The Subscriber shall send the data which needs the application of time stamp certificate to the Time-Stamping Authoritor, which will generate time stamp certificate to the Subscriber. When it is necessary to testify the data hasn’t been falsified, the Subscriber displays the corresponding time stamp of the data and the Relying Party shall testify its authenticity so as to confirm whether the data has been falsified.
Trustable time stamp
The trustable time stamp is an electronic certificate issued by the UniTrust Time Stamp Authority to prove that the electronic data document keeps complete and unchanged since the application of trustable time stamp. The issuance of trustable time stamp access approval certificate indicates the normalized application of trustable time stamp in the archives area has begun and will serve as a legal document for preventing the falsification of electronic archives and digital copy of archives and protect the archives. The trustable time stamp is an electronic certificate issued by the NTSC UniTrust Time Stamp Authority in terms of the international time stamp standard RFC3161 to testify the data electronic document (various sorts of electronic documents and electronic data) is existing, complete, and verifiable at certain time point.
The working principle of trustable time stamp is indicated as below:
Legal force of time stamp
In terms of the requirements of the Electronic Signature Law in related to the original form of data electronic document, the electronic document, archives, or digital copy of paper archives which has applied for the trustable time stamp certification can be regarded as the original form of required by the regulation. In addition, the Provisions of the Supreme People’s Court on Several Issues Concerning the Trials of Internet Court regulates that “in case the electronic data submitted by the party involved has been certified by electronic signature, trustable time stamp, Hash Value check, blockchain and other evidence collection, fixation and anti-falsification technological manners or electronic evidence storage platform and the authenticity can be confirmed, it shall be accepted and certified by the Internet Court.” The legal provision and judicial explanation mentioned above provides legal basis for the effect of time stamp.
What about the attitude of courts towards the time stamp in the judicial practice?
The writer of this paper has searched the judicial cases which used time stamp technology for evidence preservation and fixation in 2020 and found 32067 cases finally. Among the first 600 cases on the search result list, almost all the collegiate benches accepted the “time stamp” evidence form. It is worth mentioning that the China Audio-Video Copyright Association, serving as the only organization in China responsible for the administration of copyright and other rights related to copyright of audio-video programs, played an important role in copyright disputes. In each dispute case, the CAVCA adopted the time stamp technology to preserve the evidence and was accepted by the court. It is obvious that time stamp has become a familiar technology for party involved in copyright dispute and the court’s attitude towards the “time stamp” is brighter.
The writer selects several typical cases. We can see clearly the attitude of courts toward the “time stamp” in terms of the judgement reason:
（2020）Yun Civil Final Judgement No.106: the Yunnan Supreme People’s Court believed that in terms of Trustable Time Stamp Certificate corresponding to the evidence document submitted by the CAVCA, the evidence document confirmed by the time stamp certificate（*.tsa）was generated by the client-side of “Right Defender”, which could collect evidence of objective facts by the self-contained camera, video and record functions and made real-time time stamp to fix and preserve electronic evidence. Each electronic data document would be allocated with time stamp certificate（*.tsa）automatically when applying for time stamp certification. The certificate was an electronica certificate in Encryption format, which could be used to match the corresponding evidence document and verify on the time stamp center verification platform. In case the document kept complete and unfalsified since the application of time stamp, it could be verified, otherwise, it could not be.According to examination, the video document submitted by the CAVCA has passed the time stamp verification with a result that “the evidence keeps complete and unchanged since the application of time stamp”. Thus, the authenticity of evidence fixed by this method can be confirmed.Under the circumstance that no contrary evidence is provided by Tengxi Hotel, the trustable time stamp certificate in together with the consumption receipts acquired indicate the authenticity of evidence collection process of CAVCA.
（2020）Jin Civil Final Judgement No.1114: Tianjin Supreme People’s Court believed that the trustable time stamp certificate was guaranteed by the legal time service institute——NTSC and issued by the only professional and authoritative third-party time stamp service institute and conformed to relevant regulations of the Electronic Signature Law of the people's Republic of China. It could identify the objective fact of “who can possess what kind of electronic data at what time” and could not be falsified or counterfeited. In this case, Hanhua Yimei Co., Ltd. logged in the website of the UniTrust Time Stamp Authority and then logged in the MicroBlog involved in this case to preserve the evidence. The evidence collection process and evidence content had been certified by the UniTrust Time Stamp Authority. The authenticity of relevant evidence had been confirmed by the court of the first instance under the circumstance that there was no evidence to overturn the trustable time stamp certificate.
(2020) Lu Civil Final Judgement No.224: According to Shandong Supreme People’s Court, in the aspect of whether the trustable time stamp certificate issued by the UniTrust Time Stamp Authority could be used as effective evidence, Lezhi Company utilized the trustable time stamp internet electronic data collection system of UniTrust Time Stamp Authority in terms of the facts found out, and the webpage involved in this case and fixed by this method was identified as electronic data evidence and the generation, storage and completeness preservation method was reliable. Even though Migu Company raised an objection, it failed to submit contrary evidence, thus the court confirmed the trustable time stamp certificate issued by the UniTrust Time Stamp Authority submitted by Lezhi Company.
(2020) Shan Civil Final Judgement No.302: According to Shaanxi Supreme People’s Court, the notarized CD and Trustable Time Stamp Certificate submitted by Musong Company could testify when and how the songs claimed infringement involved in this case were played by Gunshi Xintiandi Singing Hall, which failed to submit contrary evidence to deny the authenticity of the two pieces of evidence. Thus, it was appropriate for the court of first instance to accept the two pieces of evidence.
According to the judgement reason of courts mentioned above, the evidence fixed and preserved by time stamp can be widely accepted by the courts in case that there is no contrary evidence.
The time stamp service of Kangxin IP Platform
Based on the 26 years of abundant practical experience of Kangxin Partners, P.C. in intellectual property industry with professional intellectual property expert team and international intellectual property protection channel, Kangxin IP Platform aims at providing one-stop smart intellectual property solution for clients under the powerful technological support of big data of global trademark patent, computer information technology and artificial intelligence technology.
In 2019, Kangxin IP Platform is connected with the UniTrust Time Stamp Service Authority. The applicant can log in the Kangxin IP Platform and complete the whole procedure form application of time stamp to issuance. As for overseas clients with the demand of copyright evidence fixation, the time stamp service provided by Kangxin IP Platform shortens the distance between the clients and the time stamp authority and helps the two parties to make direct contact with each other. At the same time, time stamp is obviously more efficient, cost-effective and convenient in comparison with the traditional copyright evidence preservation methods.
Conclusion: The rapid development of science and technology has put forward considerable challenge for judicial system. Shall we face the challenge actively or just ignore it? We have found out the answer from the work report on the Supreme People’s Court and the Supreme People’s Procuratorate. “It is necessary to deepen the reform of the judicial system and the construction of smart court, and to promote the modernization of the trial system and competence”. Challenge means opportunity as well. The judicial authority of China has made active response and promoted more application of scientific and technological achievements in judicial area. As the subject of rights, we shall grasp the opportunity and transfer the convenient, efficient and cost-effective scientific and technological achievements to a sharp sword to protect our rights and interests.