Civil Judgment

People’s Court of Haidian District, Beijing Civil Judgment

Case Number: NO. IP18 of 1999

Plaintiff: Chen Weihua, Male, and Manager of Beijing Rong Yi Da Electronic Ltd. Date of Birth: March 31, 1962. Address: Rm. 5-602, Building 5, Yanjing Dongli, Chao Yang District, Beijing. Legal Representative: Tian Yu, legal staff of Beijing Baocheng Legal Service Office.

Defendant: Chendu Computer Business Information Weekly. Business Address: Floor 5, Ming-guang Supermarket, Ying Men Kou Road, Chengdu. Legal Representative: Lu Junfeng, Male, Legal Counsel of the Defendant. Address: Rm403 of Guangda Building, Xicheng District, Beijing. Legal Representative: Fang Fang, lawyer of Beijing Lehman Lee & Xu Law Office.

People’s Court of Haidian District, Beijing (Court) accepts the case in which the Plaintiff Chen Weihua sues the Defendant Chengdu Computer Business Information Weekly (CBIW) for copyright infringement. A collegial panel has been established to hear the case. The Plaintiff and the Defendant as well as their legal representatives appeared before the panel in open court. Now that the trial has concluded.

The Plaintiff claimed that he wrote an article Talking about Maya Dramatically (Work) in the pen name of Wu Fang on May 10, 1998 and uploaded it onto his personal homepage 3D Sesame Street with a statement as “All Rights Reserved”. However, on October 16, 1998, without his permission, CBIW reprinted his article on its newspaper, Computer Business Information Weekly (Issue No.40, Family edition) (hereinafter “Newspaper”), infringed his copyright.

The Plaintiff asked for a verdict in favor of him ordering CBIW to (1) Apologize to him publicly; (2) Pay royalties of RMB231 Yuan; (3) Compensate 50,000 RMB. The Defendant argued that a reader sent the Work to the defendant’s mailbox on August 1998. There was not any statement like “All Rights Reserved” attached to the Work.

CBIW has requested the reader to provide detail information of the author, but it received no response. Thereafter, the Work was published in its entirety on the Newspaper on October 16 and the author was mentioned as Wu Fang. Chen Weiha should prove he was Wu Fang first. CBIW refused to apologize to Chen Weihua and pay him the compensation because CBIW didn’t admit any wrong doing and the alleged copyright infringement was not established.

The Court finds that 3D Sesame Street is the name of a personal homepage online (URL: http://www.nease.net/~xmchang/3ds” or http://www3d.yeah.net) and the webmaster is mentioned as Wu Fang. From January 1998, articles (mainly on 3D) have been uploaded onto this personal homepage. On May 10, 1998, the Work was uploaded onto this personal homepage with the author’s name as Wu Fang. On October 16, 1998, CBIW reprinted this article on the Newspaper and the author was mentioned as Wu Fang. Meanwhile, CBIW also added an editor’s statement in which the editor said that the origin of this article was unavailable just like the origin of 3D and it was highly recommended by a reader (also a 3D fan). Afterwards, CBIW listed Wu Fang in his Authors’ Database in which Wu Fang was recorded as the author of the Work, and noted that the royalties should be paid. In November, Chen Weihua emailed to CBIW claiming he was the author of the Work. On December 2, 1998, Chen Weihua again sent a fax to CBIW claiming CBIW for copyright infringement liability. CBIW refused his request after getting his letters.

In China, there isn’t a special law on the registration of personal homepage at the present time. Generally, the registered user will receive an account, password and the URL after completing the registration of his personal homepage. Besides the ISP, the registered user will be the only person to use his password for uploading or deleting files. In the course of trial, it was inspected before the panel that Chen Weihua was able to modify the password of Wu Fang’s personal homepage 3D Sesame Street as well as upload and delete files. The work can be saved in the hard drive of a computer and uploaded onto Wu Fang’s personal homepage via a web server. A statement of “All Rights Reserved” was attached to the Work online. CBIW failed to present any evidence, including the alleged email, to prove the existence of some unusual circumstance, or, some newspaper beforehand had published the Work. Nor did the defendant submit the original evidence to prove the reader sent the work to its mailbox.

After the inspection before the panel, CBIW admitted Chen Weihua was indeed Wu Fang. The aforementioned facts are supported by the proof such as graphic illustration, contents draft of the website, the print-out of the Work, email and fax provided by Chen Weihua; also the documents, newspaper and fax provided by CBIW; and the record of inspection, record of inquiry and record of trial of the Court.

The Court held that the copyright infringement was established and the Defendant was the infringer because:

Ⅰ. The term “Works” means intellectual creation with originality in the literary, artistic or scientific domain, insofar as they are capable of being reproduced in a tangible form. An intellectual creation is capable of being fixed in a tangible medium of expression and kept stable enough to permit it to be reproduced or contacted by the public directly or with the help of some machines. The Work in this case is a literary description of 3D technology and in character of originality. Besides, it could be fixed digitally in the hard disc of a computer, uploaded onto the Internet via a web server and kept stable enough to be accessed and reproduced by the public via a web host. Therefore, the Work is deemed to be a copyrightable work. As there is short of evidence to prove that the Work has been published beforehand, the time it was uploaded onto the personal homepage of 3D Sesame Street should be the time of the first publication.

Ⅱ. According to the Copyright Law of PRC, anyone, whose name is mentioned in connection with a work, shall, in the absence of proof to the contrary, be deemed to be the author of the work. Although there isn’t a special law on the registration of personal homepage at the present time, generally, the registered user should be the only person who could change the password, upload or delete files. Being a specialist, Chen Weihua could change the password of this personal homepage and upload, delete files, CBIW admitted that he was Wu Fang and didn’t present any evidence to prove there was any unusual circumstance. Hence, Chen Weihua is Wu Fang; the copyright of the Work is entitled to him.

Ⅲ. Copyright is in character an exclusive right that is entitled to the author on his work. Chen Weihua uploaded the Work onto his personal homepage for the purpose of disseminating it in Cyberspace. CBIW reprinted the Work on the Newspaper with some advertisements, that is, without Chen Weihua’s permission, for commercial purpose, enlarged the scope of the Work’s dissemination, and obviously violated his right of exploitation and the right to remuneration. Therefore, CBIW should take the civil liability, stop the infringement, apologize publicly and pay the appropriate compensation for damages to Chen Weihua. The Court rejected the arguments of CBIW that it had no faults subjectively to use the Work, for it is inconsistent with the facts and without any legal basis.

Ⅳ. Litigants are obliged to present evidence for their assertions. Chen Weihua asked CBIW to compensate him 50,000 RMB, but he didn’t present corresponding evidence. Therefore, the Court would determine damages of the plaintiff according the laws based on the seriousness of the infringement and no longer support plaintiff’s claim completely.

According to the Article 11(1, 2 and 4) and 46(2) of the Copyright Law of PRC, the Court orders:

1. The Defendant shall stop using the Plaintiff’s article Talking about MAYA dramatically upon the effective date of this Judgment.

2. The Defendant shall make a public apology on Computer Business Information Weekly within 15 days from the effective date of this Judgment (Contents of the apology shall be approved by the collegial panel. If the Defendant refuses to comply, the Court will choose an IT newspaper nation-wide to publish the Judgment. The cost and expenses occurred should be borne by the Defendant).

3. The Defendant shall pay the Plaintiff royalties and compensation of RMB 924 Yuan within 10 days from the effective date of this Judgment. The court acceptance fee of 2,017 RMB which has been prepaid by the Plaintiff shall be paid by the Defendant within 7 days upon the effective date of this Judgment. If any party doesn’t agree with the Judgment, he can file the appeal through this Court to Beijing No.1 Intermediate Court within 15 days of the service date of this Judgment.

Copies of the appeal petition shall be prepared according to the number of the opposing parties.

Presiding Judge: Li Dongtao

Judge: Yang Boyong

Acting Judge: Kong Jingzhao

April 28, 1999

Clerk: Ma Xiurong