The Shadow Author
The Shadow Author
A. The Case: Who is “Wu Fang”?
This is a 1999 case, the first Internet-related case of copyright infringement in China.
The plaintiff was a computer engineer.
The defendant was a newspaper.
“3D Sesame Street” is the name of a personal homepage online, with its owner identified as “Wu Fang”. On 10 May 1998, an article entitled Talking about Maya Dramatically was uploaded onto the personal homepage, with its author identified as “Wu Fang”. On 16 October 1998, the defendant published this article in its newspaper, and the author was also identified as “Wu Fang”.
The plaintiff sued the defendant for copyright infringement.
The defendant argued that the plaintiff should first prove he was “Wu Fang”.
During the court hearing, the plaintiff demonstrated that he could modify the password of the personal homepage “3D Sesame Street”, uploads and delete files.
Then the defendant admitted the plaintiff was “Wu Fang” but argued the copyright infringement was not established.
The court held that the copyright infringement was established.
Aferwards, no party appealed.
The judgement of the case is at: http://chineseip.jmls.edu/sites/en/civil-judgment
B. The problem.
The problem in this case is about registration of a personal homepage.
Registration of a personal homepage online is free.
It is only necessary to fill out a simple form that asks for the user’s name, sex, address, telephone number and email address, etc. Except the email address, the other information could be false.
Registration of a personal homepage under a fictitious name could protect the user’s legal rights, such as his right to privacy, from intrusion. Meanwhile, it also brings legal difficulties for the user, especially when registration papers that might be used to prove authorship are unavailable.
In this case, the plaintiff couldn’t produce the original registration materials for the personal homepage “3D Sesame Street”, but he could revise its password and upload or delete files.
Since the defendant admitted the plaintiff was “Wu Fang”, it was unnecessary for the Court to investigate anymore.
C. The challenge
Generally, keeping his name clearly connected with his work is a direct and effective way for an author to show his authorship.
In China, the citizen, legal entity or entity without legal personality whose name is identified in connection with a work shall, in the absence of proof to the contrary, be deemed to be the author of the work.
An author is entitled to the right to decide how to put his name to his work. This is based on his rights of authorship.
The term “Name” here may be a real name or a pseudonym.
In the past, people were used to saying that the author could only keep the secret to readers, not the editors and publishers, by using his pseudonym on his work. Because the author himself was unable to publish and distribute his work independently, he needed the help of publishers and editors.
The new technologies, as the term cyberspace implies, allow those who work with information to overcome existing spatial boundaries and barriers to communication. That means, anyone can publish his work online freely with a real name or with a pseudonym. It is for this reason the identification of an author has become more complicated.
D. Digital footprints.
On the Internet, nobody knows you are a dog.
True or false?
This case may be an answer, but not the only answer.
In view of technology, it is not easy to use the Internet anonyumously for 2 reasons:
First, popular websites could ask users to give their real names first, and block people who are suspected of using pseudonyms, especially for those who want to leave comments.
Second, digital footprint.
Digital footprint is the information left behind as a result of a user’s web-browsing and stored as cookies.
Pls read digital footprints at: https://en.wikipedia.org/wiki/Digital_footprint
In cyberspace, because of digital footprint, the use of pseudonym is meaningless.
a. It is an Internet-related case of copyright infringement, not a case of online copyright infringement;
b. For two reasons, the court held the plaintiff should be assumed to be the true author:
First, the plaintiff was in control of the web access;
Second, the defendant admitted the plaintiff was the author and the owner of the personal homepage.
F. Another case.
The infringer is in shadow, pls read The Secret Website, The Secret Infringer at: http://chineseip.jmls.edu/sites/en/secret-website