Rights infringement risks facing we-media operators

By Yin Jian, Tiantai Law Firm
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In the mobile internet era of information overload, platforms established by individuals known as we-media, or self-media, have correspondingly expanded as forms of transmitting and sharing articles, videos and audio content. In this online world where “traffic is king”, content marketing on we-media is increasingly popular for enterprises or individuals to build their brands and express opinions.

Yet although convenient and cost efficient, we-media operators are increasingly discovering they risk intellectual property (IP) infringement, mainly by violating copyright and personality rights.

COPYRIGHT INFRINGEMENT RISKS

Yin Jian, Tiantai Law Firm
Yin Jian
Associate
Tiantai Law Firm

We-media operators are prone to infringement disputes concerning the online use of pictures, fonts, articles, videos and audio content. Typical forms of infringement include:

(1) Articles. Unauthorised reprints of articles by others, reprints with unauthorised modifications, and unauthorised publication of other people’s unpublished works on internet platforms, all constitute infringement of copyright.

Tips: For reprints, contact the original author for whitelist authorisation. Reprinted articles should be attributed to their original authors by indicating “reprinted”, and should not be modified without prior permission.

(2) Music and short videos. In the first case of short video infringement, Douyin v Huopai, Beijing Internet Court established a judicial gist that “the determination of whether a video constitutes a work does not depend on its length”, which has a profound effect on the ecosystem of short video operations.

The Copyright Law also protects clips of film and television works or original short videos. Unauthorised clips of copyrighted works or derivative creations based on others’ existing works constitute infringement.

Also noteworthy is Shanghai Intellectual Property Court’s judicial gist regarding the “Calabash Brothers and Black Cat Detective movie poster” case: “If the quotation results in a transformation in the original artistic value and function of the quoted work, and which original market is not affected by substitution effect, it constitutes a transformative use but does not constitute an infringement.”

Therefore, the use of posters containing elements copyrighted by others for film/television works usually does not constitute an infringement.

Tips: Avoid using others’ original material. If unavoidable, follow the “fair use” doctrine and ensure there is no unpublished work; indicate the source of the work; ensure the proportion of quotation is appropriate; and ensure such use does not affect normal use of the quoted work or impair the legitimate rights or interests of its right holder.

(3) Pictures and fonts. Apart from “fair use” such as personal study, unauthorised use of pictures and fonts downloaded from the internet, and unauthorised re-editing and use of pictures from unknown sources, constitute infringement.

The Lin Chih-Ying Photoshop case – awarding the highest compensation (RMB345,000, or USD50,800) in China for violating the copyright of a single photographic image – clearly shows that unauthorised use and re-editing of other people’s images carries huge legal risks.

Tips: Use copyrighted pictures or purchase images from commercial copyright libraries. Do not re-edit any images without permission. Avoid using fonts that are not available for commercial use in graphic designs.

PERSONALITY RIGHT RISKS

The Civil Code includes a separate book for personality rights, reflecting China’s emphasis on personality rights protection. Although the internet is not beyond the reach of judicial accountability, infringements of personality rights are not uncommon. In particular, infringement of portrait and reputation rights frequently occurs.

(1) Portrait right. The Civil Code provides that “unless otherwise provided by law, without the consent of the portrait’s right holder, no one shall make, use or publicise the portrait, and the portrait work’s right holder shall not use or publicise the portrait of the right holder by means such as publishing, duplicating, distributing, leasing or exhibiting”.

The “Ge You Slouch” meme that went viral on the internet sparked numerous lawsuits against we-media operators over portrait right infringement. In the lawsuit brought by Ge You, a famous Chinese actor, these we-media operators were ordered to pay monetary compensation.

Another example was the lawsuit dispute over actor Nicky Wu’s stills from the TV drama series Scarlet Heart 2, when the court reiterated that “portrait works contain both the portrait right and copyright, but the two are aggregative, rather than absorptive, to each other, and the exercise of the copyright should not annihilate the portrait right”.

Tips: Avoid using celebrity portrait pictures. If necessary, follow the “fair use” doctrine prescribed in article 1020 of the Civil Code. Even if a copyright is granted, it is still necessary to obtain consent to use the portrait of the right holder.

(2) Reputation right. The Civil Code also provides that no one shall infringe the reputation rights of others through insult, slander, etc. Anyone who affects other people’s reputation in carrying out such acts as news reporting or public opinion supervision for public interest purposes shall not bear civil liability except for the following circumstances: (1) fabricating or distorting facts; (2) failing the obligation of reasonable verification of seriously misrepresentative information provided by others; or (3) demeaning others’ reputation with insulting words, etc.

Traffic is the key to success for we-media, and the ability to attract the attention of internet users is the “master key to traffic” for we-media operators. But in recent years, many lawsuits against we-media operators have claimed vast sums, such as Mobike v Heart of Rock, with a claim of RMB1.2 million, and Baidu v Cool Lab and Fenbilantian with a claim of RMB15 million.

These cases highlighted typical examples of “exaggeration”, “unverified information” and “fictitious facts”, sounding the alarm bell to we-media operators.

Tips: Avoid releasing any information that contains insulting or defamatory words or any unverified information. Avoid releasing any fictitious information. Titles of published articles or short videos should not be exaggerated or overstated, and information should be checked for authenticity prior to release, with verification records kept as evidence in the event of any future dispute.

To sum up, IP infringement presents many legal risks to we-media operations. Once involved, we-media operators may bear civil liabilities such as apology and monetary compensation, in addition to penalties imposed on the internet platforms.

To make better and safer use of we-media for their brand and business development, we-media operators should attach great importance to the identification and prevention of legal risks.

Yin Jian is an associate at Tiantai Law Firm

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