Copyright and judicial proceedings

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A previous column in Lexicon explored issues concerning copyright (China Business Law Journal volume 5, issue 3: Copyright). As that column noted, copyright belongs to that category of rights that we refer to as “intellectual property rights”. It confers both economic rights on the owner (e.g., the right to copy and sell a written work) and moral rights (e.g., the right to claim authorship of a written work).

The origin of the term “copyright” in English is quite straightforward: the word literally means “the right to copy”. There are two words that have been used in Chinese to express this concept: banquan, which is close to the English word and means “printing rights”, and zhuzuoquan, which derives from the concept of the “right of authorship” under German law and is the statutory term used in China.

An important point to recognise is that copyright law is “territorial” and national in scope, and there is no “international” copyright law. As a result, the copyright law of a jurisdiction will only apply to acts of infringement that occur in that jurisdiction.

The previous column explored the work products that lawyers create and considered whether lawyers enjoy copyright in relation to written documents and, accordingly, whether they enjoy the exclusive rights that copyright confers, such as the right to copy, revise, re-arrange and translate.

This column considers a different issue: whether copyright is infringed if documents are copied for the purposes of judicial proceedings. Let’s say, for example, that a party to a judicial proceeding wants to provide copies of a newspaper article or blog to a court as part of the evidence in support of its case. Is it possible to do this without infringing the rights of the copyright owner?

Of course, it might be possible for the party to provide an expert witness report to support its case (for discussion of expert witnesses, see China Business Law Journal volume 10, issue 4: Expert evidence). However, let’s say that the party does not need to prove a technical point, but simply wishes to provide a copy of a newspaper article to the court to explain the general context, and to strengthen its case. This column considers the issues in selected common law jurisdictions (namely, Australia, the UK, the US and Hong Kong SAR) and then explores the issues in mainland China.

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Commercial courts
葛安德
Andrew Godwin

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia

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