A Copyright Dispute between Tudou.com and Beijing XX Movie Company (2009)
Basic facts:
In June 2009, Beijing XX Movie Company (plaintiff) brought a lawsuit to the people’s court against Shanghai Quantudou Network Technologies Co., Ltd. (Tudou.com) for alleged infringement on its copyright, a TV drama entitled “The Magic Touch of Fate” (featuring stars such as SU Youpeng, LIN Xinru and Kangta), claiming for a court ruling that the defendant ceases the infringing act, ceases providing the TV drama for online viewing and downloading service, and damages be awarded. The TV drama “The Magic Touch of Fate” received distribution license (G.J.J.S.Z. (2005) No. 079) on Jun. 4, 2005, according to which, the Drama consists of 22 episodes each of which having a length of 47 minutes. In this case, totally 20 videos entitled “The Magic Touch of Fate SU Youpeng Version” were found on Tudou.com (http://www.tudou.com/), an online video website operated by the defendant. As data show, the 20 above-mentioned videos have an average length of about 20 minutes and the uploader was shown to be “Zunyuyongtandiao”.
From the date of infringement evidences achieved till when the case was brought to the People’s Court, the plaintiff neither declared that it is the copyright owner of the works involved in the case, nor notified the defendant to delete the works involved.
The points at issue in this case: what were the examination responsibilities of the defendant, as an online storage service provider, concerning the videos of The Magic Touch of Fate SU Youpeng Version uploaded by its users “Zunyuyongtandiao” and whether the defendant and the uploader constituted a contributory infringement or not.
Lawyer’s statements:
The lawyers for the defendant deemed that, pursuant to Article 22 of the Regulations on the Protection of the right to Network Dissemination of Information promulgated by the State Council, “an internet service provider who provides information storage space for its users so that the latter could provide works, performance, audio-visual recordings to the public through information network, shall not assume liability for compensation, provided that the following conditions are met: 1. the information storage space has been clearly identified as provided for its users and the name, contact person and website address of the internet service provider are publicized; 2. having not altered the works, performance, audio-visual recording provided by the users; 3. having not known and having no justified reason to know that the works, performances, or audio-visual recordings provided by the users have infringed upon an other’s right; 4. the service provider has not directly obtained any economic benefit from the provision of works, performance, audio-visual recordings by its users; 5. the service provider has deleted the works, performance, audio-visual recordings regarded as infringing on the right of the owner after receiving the notification from the owner”. Pursuant to the above-mentioned regulations, the defendant had deleted the allegedly infringing works after receiving the plaintiff’s complaint, no direct benefit was gained and the defendant has not known and has no justified reason to know that the works provided by the users have infringed upon an other’s right, consequently, the defendant should not be held liable for tort and compensation.
Judgment of court:
The plaintiff’s claims were overruled and the plaintiff was ordered to pay litigation costs.
Lawyer’s remarks:
In recent years, some major western countries have been criticizing China’s IPR protection practice. On the basis of judicial autonomy, Chinese government and judicial authorities cracked down on IPR infringements. In view of this situation, it was extremely rare for the court to rule that the defendant needs not assume liability for tort pursuant to Article 22 of the Regulations on the Protection of the Right to Network Dissemination of Information. The reason why the court of hearing made such a decision was due to the particularity of the facts involved in the case.
The case mainly involved the TV dramas’ right to network dissemination of information, which was first introduced into China’s existing legal system through the amendment of Copyright Law in 2001. The works’ right to network dissemination is a brand new form of intellectual property right and a new form of copyright arising from the rapid development of internet. The protection system of the right in various countries is under continuous study and revision. In May 2006, the State Council released the Regulations on the Protection of the Right of to Network Dissemination of Information and incorporated the “Safe Haven Principle”, namely Article 22 into the Regulations based on the legislative experience of the Digital Millennium Copyright Act USA (DMCA).
The so-called Safe Haven Principle refers to the situation where, in the case of an copyright infringement, an ISP (Internet Service Provider),who only provides storage service and does not make or provide web contents, is obligated to delete the contents stored on its space which are alleged to be infringing when the ISP was informed of such alleged infringement. If such allegedly infringing contents are not stored on the ISP’s server and the ISP is not informed of which contents to be deleted, then the ISP needs not assume liability for tort (Note: an ISP is different from an ICP (Internet Content Provider), who assumes totally different obligations than an ISP does and an ICP must be liable for the legitimacy of the source of its contents).
The aim of the Safe Haven Principle is to balance the conflict of rights and interest between the creator and disseminator of works and establish a mutually dependent, interactive and influencing relationship between them, thus achieving a better balance between industrial development, the protection of copyright owners’ interest and public interest and laying a legal foundation for accelerating industrial development of network.
In this case, considering the fact that the works involved have been adapted by the uploader and the copyright owner exercised its right of action without notice, it would be technically and socially unfeasible and unfair to the ISP if the judicial authority extends the obligation of screening works for possible infringement (including adapted works) to the ISP.
Based on the neutrality of technology, the limitations of screening by technical means and social experience and taking into account of legal principles and facts such as the legal status of the defendant as an internet service provider, the balance of interest between works creator and disseminator, the components of contributory infringement and the plaintiff’s failure to notify the defendant to delete works of alleged infringement, the lawyers put forth their defense and submissions, which are eventually supported by the court.
