Weighing Weibo’s copyright issues

By Wang Yadong and Zhang Jing, Run Ming Law Office
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With rocketing growth in 2011, Weibo, the microblogging website, has become a channel for the immediate sharing of information among ordinary users and even a new publicity platform for enterprises. The Jinshan Co v Zhou Hongwei name rights infringement case, dubbed the “first domestic Weibo case” by the media, has attracted the interest of the legal fraternity in legal issues that relate to Weibo.

The Supreme People’s Court recently issued the Opinions on Several Issues Concerning Fully Leveraging Intellectual Property Trial Functions to Promote the Great Development and Great Flowering of Socialist Culture and to Promote Autonomous and Co-ordinated Economic Development (the Opinions, ref. Fa Fa [2011] No 18).

Based on relevant provisions of the Opinions, and taking into account explanations of them given by the Supreme People’s Court at a press conference, to date no special characteristics of Weibo copyright cases have been found that place them outside the coverage of the current Copyright Law.

Given that the publication and sharing of information are the main functions of Weibo, this column looks at Weibo’s sharing mechanism from the perspective of the Copyright Law and considers how to protect information content published on the website.

Wang Yadong Run Ming Law Office
Wang Yadong
Executive Partner
Run Ming Law Office

Weibo’s features

Weibo means MicroBlog (wei meaning micro and bo being a short form for boke, or blog). In the “first domestic Weibo case” mentioned above, the Court of First Instance summarised the features of Weibo as follows: “enables the individual to promptly express from his or her particular perspective personal feelings towards specific people or issues in a few words, allows the audience to share their own highlights and perceptions, which opinions and perceptions can be searched and obtained by others as public information on the internet.”

As compared to such online exchange platforms as online forums, blogs, etc. Weibo’s main distinguishing features are: short texts, normally limited to 140 characters; an open user attention mechanism and passive filtering mechanism as the unprecedented broad prerequisites for information dissemination; and convenience and rapidity of publication, reproduction and dissemination.

Zhang Jing Run Ming Law Office
Zhang Jing
Lawyer
Run Ming Law Office

Copyright protection

Only Weibo content that constitutes a “work” is subject to the protection of the Copyright Law. Is information content not exceeding 140 characters in length published via Weibo covered by copyright? The current PRC Copyright Law specifies that the subjects of protection of the law are “works”, and not all Weibo content constitutes “works”. As with other forms of intellectual product, the key to determining whether Weibo content can be considered a “work” lies in whether the content is original.

Much of the Weibo content published by average users records life and feelings, along the lines of “It’s snowing, really cold”, etc. Such statements are simple and straightforward, failing to satisfy the requirements of the Copyright Law in respect of the originality of works, and therefore do not constitute a work and are not subject to the law’s protection.

Some Weibo content, on the other hand, shows creative ingenuity, is artistic in content and expression, and based on general perception is rich in originality. This form falls within the category of “works” as specified in the Copyright Law.

Such Weibo content will be deemed “works” as specified in, and be accorded protection under the law. Although the length restriction will affect the creative process, it does not prevent Weibo content from becoming a “work”.

Multiple entries

The restriction on the number of characters on Weibo is a restriction only on the use of Weibo, not a core criterion for determining whether Weibo content constitutes a “work”, nor an obstacle to its becoming a “work”. If a Weibo user needs to publish content exceeding 140 characters, he or she may publish it in separate chunks, so as to accurately express his or her ideas.

At times, the publisher will have expressly or implicitly indicated that several pieces of Weibo content constitute a complete whole. For example, a mini-novel may be published in instalments on Weibo. We can first directly determine from form whether these multiple pieces of Weibo content constitute a complete whole. With respect to content, based on the perception of the average public, if it can be determined that multiple pieces of Weibo content that form a single whole are consistent in terms of content and connected in terms of expression, then they can in fact be deemed a complete whole.

If a publisher of Weibo content has not given an indication in form, whether express or implicit, it is necessary to carry out a comprehensive analysis of the content and expression of the multiple pieces of Weibo content.

To determine whether multiple pieces of Weibo content that form a complete whole constitute a work, it is still necessary to determine whether it is original, and thus derive a conclusion as to whether the pieces of Weibo content constitute parts of the same work.

Forwarding and copyright

Forwarding, as a representative act of dissemination, is a direct manifestation of the function of Weibo. Based on the circumstances of the Weibo service, once Weibo content has been published, the publisher may be deemed to have tacitly consented to other Weibo users forwarding their Weibo content, with no exception for Weibo content that constitutes a “work”.

Of course, when using the Weibo service to forward such Weibo content, the other users should accord the necessary respect to the publisher’s copyright, including indicating his or her name, retaining his or her copyright notice, not impairing the integrity of the work, not using the work in profit-making activities etc., failing which the forwarding user could be infringing the copyright in the Weibo content.

Additionally, to protect his or her lawful rights and interests under the current Copyright Law framework, a Weibo content author can prohibit or restrict forwarding by expressly prohibiting others from forwarding his or her content, expressly stating the conditions under which forwarding may be done etc., or, after comprehensively considering the costs and actual need, register his or her copyright in the Weibo work so as to confirm title.

Wang Yadong is the executive partner of Run Ming Law Office, and advised Zhou Hongwei in the “first domestic Weibo case”. Zhang Jing is a lawyer with the firm.

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E-mail:

wangyd@runminglaw.com

zhangj@runminglaw.com

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