In many copyright infringement disputes involving educational and training institutions that the authors have dealt with, the vast majority of infringements are very easy to identify and determine.
For example, copying complete sets of others’ works, and even concealing the authorship and the names of the copyright owner. Or perhaps using some chapters, paragraphs, pictures etc., from others’ works, including combining other people’s works with the user’s own teaching and supplementary materials.
Laws and regulations in China have clear provisions on the above-mentioned situations, and the administrative and judicial organs have formed a set of mature enforcement and trial options.
In practice, there is a big controversy where these institutions have purchased copyrighted textbooks (even in teachers’ editions), and all trainees have done so, too. Does it constitute infringement when the institutions use these textbooks for teaching? The authors can raise two specific questions: First, which right is violated under the protection of the Copyright Law? Second, how is this applied to commercial use with the defence of fair use?
Previously, some believed that this kind of teaching behaviour violated the performance right of the work, and compared it with an actor’s on-site recitation of the work, and thus concluded that even if the audience each had a copyrighted work, the actor’s performance still constituted infringement.
The authors believe that there are great differences between an actor’s recitation of works and the use of textbooks by training institutions, when it comes to the use of works, or textbooks.
Taking the English class as an example, in on-site teaching, if the teacher neither retells nor displays the teaching materials, it is very difficult to define this as performance or reproduction (of textbooks), and it is even harder to judge whether trainees can learn without purchasing these materials. Therefore, the conclusions from Julia Banner Alexander’s copyright infringement dispute against the training school Dell English, in Beijing’s Haidian District, cannot be simply applied.
In fact, even if we put aside the technical problem of how to effectively preserve evidence in the teaching content of on-site small-class training, and only look at which rights – from (1) to (16) of article 10, paragraph 1 of the Copyright Law – are infringed by this teaching behaviour, the conclusion would be that it may be difficult to be included in the law’s scope of protection.
However, it seems that the application of catchall provisions, from the Guidelines for the Trial of Copyright Infringement Cases of the Beijing Higher People’s Court, has provided a better angle to this problem.
We need to find a balance between whether allowing such teaching will affect the normal exercise of the existing rights of copyright law, and whether stopping such teaching will lead to a major imbalance of interests among creators, disseminators and the public.
Recent judicial practice is also trying to explore the reasonable scope of the commercial use of works, and to clarify the boundaries of the “fair use” defence. In the Tencent v Watermelon Video case, involving the live broadcast of the online game “Honour of Kings”, and the NetEase v JOYY case, involving the live broadcast of “Fantasy Westward Journey”, both concerning copyright infringement and unfair competition, and without the permission of the holders of copyright, the judicial organs have already responded, to a certain degree.
The issues to be considered include whether the attraction of users and traffic mainly depends on the work itself, whether it affects the use of the work by the copyright holders, and whether it seizes the market share of the copyright holders and affects its market revenue.
As early as 2011, the Supreme People’s Court mentioned, in its Opinions on Several Issues Concerning Giving Full Play to the Judicial Function of Intellectual Property Rights to Promote the Great Development and Prosperity of Socialist Culture and the Co-ordinated Development of Economic Autonomy: “In exceptional cases where there is a genuine need to promote technological innovation and commercial development, the court should consider such factors as the nature and purpose of the use of the work, the nature of the work used, the quantity and quality of the part used, and the impact of the use on the potential market or value of the work. If the use neither conflicts with the normal use of the work nor unreasonably damages the legitimate interests of the author, it can be considered as fair use.”
At the time, it was considered to be an effective reference for the rational use of the “four elements” standard in the US Copyright Law of 1976, but there have been few cases in which the standard was directly used in judicial practice since then.
From an international perspective, the “three-step test” established by the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the “four factors” of fair use in the US Copyright Act of 1976, and the judicial practice standards in China have become increasingly “integrated”.
How to prepare and respond to possible changes will become a very important issue for textbook authors and commercial training institutions in the development of the Chinese market.
The authors have conducted a detailed theoretical study of this, but, also concerned about the changes in the trend of the trial, are waiting for the enlightenment of new cases.
At the same time, the authors also pay more attention to the restrictions or declarations made by the copyright owners in their user agreement on the use of their textbooks, such as “not for any commercial purpose”, “only for personal use”, and so on, as to whether that will affect the compensation.
Xing Keke and Guo Jincheng are partners at Yuanhe Partners.
58F, Fortune Financial Center (FFC)
5 Dongsanhuan Zhonglu, Chaoyang District
Beijing 100020, China
Tel: +86 10 5733 2388
Fax: +86 10 5733 2399