Along with the rapid development of Internet technology, especially the development of the mobile terminal equipment, media industry in the worldwide is facing both opportunity on and challenge of how to handle digital publication in both business and legal aspects.
In China, from the business point of view, the total output value generated by digital publication is only CNY 21.3 billion. The number in 2010 is 105.9 billion. In 2012, the number has rapidly increased to 193.5 billion, which is almost 10 times comparing with 2006. There is no doubt that digital publication is a "big cake" inducing every practitioner in media industry to be involved in.
Meanwhile, several intractable legal issues emerge from the daily practice in the field of industry. In China, how to protect TV programs, articles, etc., from being plagiarized through Internet has become a hot topic. Through cases analysis, this paper is about to discuss the current legal protection status of the programs network dissemination in China and corresponding significant matters needing to be considered by media companies.
One Typical Case - CCTV International Network Co., Ltd vs. Shijilong Network Co., Ltd (21CN)
On 22nd July 2008, the China Central Television (CCTV) granted a Copyright License to the Plaintiff in the current case that the Plaintiff has the exclusive right to broadcast all sporting events, which relate to No. 29 Beijing Olympic Games, through Internet.
On 6th Aug. 2008, the Plaintiff found that a live video software called "VGO" can be downloaded on the website www.21cn.com, which is operated by the Defendant. On the website, it is also demonstrated that 21CN the Defendant is the publisher of this software.
The main functions of this software include P2P video on demand (VOD), P2P live streaming video and P2P video download.
On the website, the Defendant advertised that " The First Battle of Women's Football in Olympic - Germany vs. Brazil ". Through specific link, audiences can watch the game on live by using the "VGO" software.
On 8th May 2012, the court made the judgement and held that the Defendant shall compensate the Plaintiff CNY 200,000.
Further Analysis on Main Issues Media Company may Confront in This Kind of Case
In daily practice, media companies always confront the risk that certain programs are plagiarized by third parties and spread through Internet. The above is a typical case in this field. It looks like a simple and straight forward case. However, several complicated legal issues behind this case have to be considered before making the final judgement. To obtain a brief understanding of these issues and current attitude held by China Court system is also meaningful for Media companies when conducting business in China.
1. Nature of TV Programs
As a general principle in Civil Law countries, if you want to seek for Copyright protection, the first thing is to prove your alleged object can be recognized as "Works" under Copyright Law.
Article 2 of the Copyright Law Implementing Regulations of PRC specifies that for the purpose of the Copyright Law, in order to be protected the "Works" shall have creativity, which means original intellectual achievements in the literary, artistic and scientific domains.
In real life, in light of the level creativity, the programs released by press can be roughly classified within the following three categories:
a) Fact-only news reported via newspaper, periodicals, radio stations, television stations, or other media (Article 5 of the Copyright Law Implementing Regulations of PRC) - According to Article 5 of the Copyright Law of PRC, "news on current events" cannot be recognized as "Works", and therefore, cannot be protected under the Copyright Law.
b) TV Shows including talk shows, entertainment shows, soap operas, etc., - In consideration of such shows are born with high creativity, they will normally be considered as "works created by means similar to cinematographic" under Article 3 of the PRC Copyright Law, which stipulates the statutory types of works.
c) Visual recordings of certain events with TV commentaries, such as broadcasting Olympic Games like what happened in the current case - for this kind of programs, due to the event itself cannot be arranged and the program maker is not in a leading position, the creativity is relatively lower than TV shows. However, comparing with the fact-only news, this kind of programs adds commentaries, subtitles and profiles of athletes, which are all creativity works. Thus, it shall be recognized as neighboring right of copyright and protected under Copyright Law (Article 41 of the Copyright Law of PRC and Article 5 of the Copyright Law Implementing Regulations of PRC).
In fact, the court upheld the above view and recognized this type of visual recordings as a neighboring right, which shall be protected under Copyright Law.
2. Right of Dissemination through Information Networks
After solving the above issue and confirming that the program can be protected under Copyright Law, the follow question is what specific right is infringed by the defendant.
Article 10 of the PRC Copyright Law regulates that "the Copyright shall include the following types of personal and property rights: ... (12) Right of dissemination via information network, i. e., the right to make a work available to the public by wire or wireless means, through which the public may access the work at times and places of their respective choices. ... "
As a general phenomenon faced by media companies, one of the significant features in the current case is that the infringing activities are committed through Internet dissemination. According to the above provision, such infringement shall be deemed as a infringement of the right holder's right of dissemination via information network, which is also supported by the court in the current case.
However, the particularity in this case is that due to it is a live broadcast, the public cannot "access the work at times of their respective choices". On the contrary, it is a "set-time" broadcasting activity. Frankly speaking, whether this kind of activities can be involved in the right of dissemination through information networks is still unsolved in China court system.
In 2008, in Ningbo Chenggong Multimedia Communication Co., Ltd. vs. Beijing Shiyue Information Network Technology Co., Ltd., the Beijing First Intermediate Court upheld that such "set-time" online broadcasting shall be recognized as an infringement of right of dissemination via information networks. However, in the same year, in Anle Film Co., Ltd. vs. Beijing Shiyue Information Network technology Co., Ltd., the Court held that such "set-time" broadcasting shall be governed by Article 10 (17) of the Copyright Law of PRC and considered as a "other right to which a copyright owner shall be entitled".
Nevertheless, there is a tendency that more and more China courts recognize such "set-time" broadcasting as an infringement of right of dissemination through information network. In addition, as you may notice, the modification of the current Copyright Law has be on the NPC Standing Committee's agenda since 2013. Hopefully, the legislators will give us a clear answer of the above issues soon.
3. Web Service Provider's Responsibilities - "Safe Harbor" Principle
In the current case, due to the Plaintiff has solid evidence to prove the software is made and operated by the Defendant, there is no issue referring to the determination of responsibility between web service provider and software/program direct provider.
However, different from the current case, in daily life, the infringement of right of dissemination through information network is always accomplished by web service provider and software/program provider jointly. That is to say, there will be two suspected "infringers" - one provides the infringing program and the other provide web service.
In light of my experience, the infringing program provider (direct infringer) is normally individual or small entity. Comparing with pursuing right against these "small" entities, the victims are more willing to seek remedy from "big" web service providers.
However, that is not easy, because in this kind of cases, the web service provider will normally use "Safe Harbor" Principle to make defense. That is, only in the situation that a web service provider clearly knows or should have known that a web user is using its web services to infringe upon the right of dissemination through information networks, can it constitute the behavior of assisting in infringement (Articles 7 and 8 of the Provisions of the Supreme People's Court on Certain Issues Related to the Application of Law in the Trial of Civil Cases Involving Disputes over Infringement of the Right of Dissemination through Information Networks).
How to determine "know or should have known" is the key issue here.
In 2013, in Beijing Motieshumeng Information Technology Co., Ltd. vs. Apple, Inc., the Plaintiff claimed that one App developed by 3rd software developer sold on App Store operated by the Defendant infringed their right of dissemination through information network. In defense, the Defendant utilized "Safe harbor" principle and alleged that they does not know and should not have known the App infringing the Plaintiff's right. In the judgement, the court held that due to the 3rd party has signed specific IOS protocols with the Defendant before selling the App and the Defendant has obtained profit from such sale, the Defendant's duty of care shall be higher than normal web service provider, and therefore, it is deemed that the Defendant "should have known" the infringement.
In order to overcome the "Safe Harbor" Principle, the Plaintiff has to prove the Defendant knows or should have known the infringing activities. In the above case, the Plaintiff submitted relevant IOS protocols, upon which the court supported the Plaintiff's corresponding claims. In daily life, it is a normal practice to send the web service provider a formal C&D Letter before taking further substantial legal actions. The sending process and this C&D Letter itself shall be properly recorded or notarized, which can be crucial proof of "know or should have known" before the court.
Suggestions for Media Industry
On the basis of the above discussion and also as a conclusion of this paper, we'd like to summarize the following programs network dissemination protection strategy in China for media companies' consideration.
1. Defense Strategy
a) Make sure all programs are affixed with the media publisher's logo or copyright mark before broadcasting, as in the absence of proof to the contrary, the author of a work shall be the entity whose name is affixed to that work (Article 11 of the Copyright Law of PRC).
b) Publisher shall take technical measure to prevent any 3rd party from downloading or plagiarizing the programs through network.
According to Article 4 of the Regulations on the Protection of Right of Dissemination through Information Network, any activity that avoids or damages a technical measure on purpose shall be deemed as an infringement.
c) Apply for Copyright Recordal if necessary. Through copyright recordal, the creation date and date of first publication can be confirmed. Unless have equivalent strong evidence, the copyright recordal shall be accepted by court as proof of ownership.
2. Right Pursuing Strategy
a) Against the Web Service Provider (Indirect Infringer)
When finding suspected infringing activity, normally speaking, the first step is to fix proof of infringement by website notarization. Afterwards, as discussed above, a formal C&D Letter shall be sent to the web service provider in order to overcome the "Safe Harbor" Defense.
In addition, in respect of certain famous video website operators, such as Youku, Xunlei, they also have their own IP department to accept IP infringement complaint. Thus, with respect of this sort of provider, instead of C&D Letter, the right holder could file complaint to this provider and ask them to delete the infringing videos using the above discussed website notarization deed and copyright recordal deed as solid evidence.
b) Against the Provider of Infringing Works (Direct Infringer)
In respect of the normal individual infringers, after making the actions against the website operator, their corresponding infringing activities could be diminished in the most of cases. However, if the individual or entity discloses the right holder's work with a large amount and taking profit as main purpose, the right holder may choose to file lawsuit against them accordingly.
With respect to the video provider who is also the website operator, just like what happened in the CCTV case, the right holder could file copyright infringement lawsuit against them.
In addition, like what happened in the Apple case, if the above mentioned website operator does not cooperate, the right holder could sue them and specific direct infringer jointly in one lawsuit.