Case 16
The Case of Zhejiang University Press’ Infringement upon Copyright
Trial Docket: (2017) Zhe861MinChu No. 2270
[Headnotes] China’s Copyright Law is formulated to protect author’s rights and interests. The provisions in the law governing the statutory authorization of textbook are a balance between copyright and public interest, which imposes appropriate restrictions on author’s rights. Therefore, there should be a strict determination of textbooks. If no evidence can prove that the teaching book is used as formal textbook for classroom teaching, it cannot be ascertained as a textbook provided for in the Copyright Law. Unauthorized use of others’ works should be ascertained as infringement upon copyright. However, if the allegedly infringing book is used as a common teaching book with a use of others’ works in a small proportion, and stopping the publication and distribution of such books will not only affect the normal procedure of relevant teaching activities, but also cause a large waste of resources, there may be a rule, as the boundary for copyright protection and the standard for author’s tolerance, to follow that does not hinder educational development by increasing the compensation amount instead of stopping the publication and distribution in order to compensate the author and balance the interests of all parties.
[Synopsis] Plaintiff: Ji Guangyang Defendant: Zhejiang University Press Co., Ltd. (ZUP), Bookuu Network Media Group Co., Ltd. (Bookuu) The article “One Minute” was published in the fifth issue of Readers in 2002, with a full text of about 680 words and Ji Guangyang as its author. In March 2012, the article (affixing Ji Guangyang as the author) was compiled into Putonghua Level Testing Textbook for Zhejiang Prince edited by the Zhejiang Provincial Language Commission and Zhejiang Provincial Association of Language Workers and published by ZUP. The Chinese Pinyin letters are marked above every Chinese character in the text to make it a reading book for Putonghua level test. Ji Guangyang argued that both ZUP and Bookuu infringed upon his copyright by the former’s unauthorized use of his work “One Minute” and by the latter’s sale of such books, and requested a judgment ordering ZUP to stop its publishing and distribution of the allegedly infringing books and make a payment of 20,000 Yuan as economic losses and reasonable expenses, and ordering Bookuu to stop selling such books. ZUP argued that the use of relevant work needs no consent of the author because the allegedly infringing book was a textbook edited and compiled for the implementation of China’s education plan, and that compensation amount claimed by the plaintiff was too huge and exceeded the statutory remuneration standard. Bookuu argued that it was just a seller and had legal purchase channel, that it had stopped selling the allegedly infringing books after being notified, and that it should not be liable for compensation as a result.
The Hangzhou Railway Transport Court ruled, after trial, that, as a professional publishing organization, ZUP infringed Ji Guangyang’s copyright by its using the latter’s works in the book it published and distributed without the author’s authorization. The court held that the provisions in the copyright law are designed to protect the author’s rights and interests and its provisions governing the statutory authorization of textbook is just a balance between the copyright and public interest, which imposes appropriate restrictions on author’s rights, that there should be a strict determination of textbooks as a result, that not all teaching books can be regarded as textbooks in the sense of copyright law, that the press has the obligation to prove the book it published is the textbook provided for in the copyright law, and that ZUP’s argumentation shall not be accepted because of its failure to submit evidence to prove its argumentation.
With regard to Ji Guangyang’s claim for ordering ZUP to stop its publishing and distribution of the allegedly infringing books, the court ruled that it is a commonly used teaching book for Putonghua professional education because it had been printed 25 times from March 2012 to August 2016, and that such stop because of its mere use of a short work no more than a thousand words will not only lead to an imbalance of interests between the parties, but also be not beneficial to the development of education in relevant fields. Therefore, it rejected Ji Guangyang’s claim for such stop, but increased the compensation amount as a substitution compensation for the author’s rights that has not be fully protected in order to balance the interests of the author, the public and the press.
The court rendered a judgment that ZUP shall pay 8,000 Yuan to Ji Guangyang as economic losses and reasonable expenses, and all parties accepted the judgment.
[Judge’s Comment] This case is a dispute over the infringement upon copyright involving textbook. As to whether the statutory authorization system can be applied to the use of others’ work in teaching books, China’s Copyright Law has corresponding provisions in Article 23, but it has no clear definition of textbook, due to which disputes have arisen over the requirements that textbooks should meet. In addition, teaching books often contains public interest elements and some reasonable uses of others’ works. If the teaching book is an infringing product, can a judgment be rendered to stop its being published and distributed? There have been no uniform practice followed by the courts in China in this regard. The court hearing the case ruled that there should be a consideration of relevant provisions and the specific circumstances of the case when determining whether the teaching book can be ascertained as textbook and how to grant necessary remedies to the publisher of the allegedly infringing teaching book.
(1) Determination on Whether Teaching Book is a Kind of Textbook Provided for in the Copyright Law
Teaching books refer to the books related to teaching activities. Not all teaching books are textbooks. Whether the teaching book is textbook stipulated by the copyright law should be proved by the publisher. The court should strictly consider the evidences submitted by the publisher in support of its claim that the teaching book it publishes is a kind of textbook. There should be a consideration of: ① the basis for editing and compiling the teachinag book which should be based on the course plan or the professional teaching instruction plan formulated by the competent administrative authority under China’s State Council or China’s provincial government and ② the actual use of the teaching book, which means that it should be used for classroom teaching.
(2) If the Teaching Book Involved is a Commonly Used Teaching Book, Remedies should be Granted to the Publisher.
Although statutory authorization system can not be applied to the accessory teaching book, the main component of teaching book, as that to textbook, there should, from the perspective of facilitating education development and after ascertaining the publication of accessory teaching book as a product of infringement, be a different handling of good and bad accessory teaching books, as well as malicious and non-malicious infringements to determine whether there should be a stop of publishing and distribution according to its significance on the teaching activities and the necessity of using others’ works.
In summary, the court of firstinstance ruled that the publisher has infringed upon others’ copyright because of its unauthorized use of others’ works in the books involved. However, in consideration of the influence of the books involved on the relevant teaching activities, the significance of the works involved on the books involved and the publisher’s negligence in infringement, the court didn’t order the publisher to stop its publishing and distribution of the books involved, but increase the compensation amount as a substitution compensation for the author’s rights that has not be fully protected in order to balance the interests of the author, the public and the press.
（Translated by Zheng Xiaojun, Yuan Renhui)
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