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China IP Magaziine

The Case of Infringement upon the Right to Network Dissemination of Information of Written Works by Audio Book

发布时间:2018-12-06
Case 15
The Case of Infringement upon the Right to Network Dissemination of Information of Written Works by Audio Book
Trial Docket: (2017) Zhe8601MinChu357
Appeal Docket: (2017) Zhe01MinZhong No. 4386
 
[Headnotes] Reading aloud written work is a kind of performance. The sound of reading aloud is a kind of sound recording. Audio book is a reproduction of the written work othe r than adapta t ion regardless of whether background music, sound effects, etc. are added or not. Unauthorized production or provision of audio materials infringes upon the right of reproduction and the right to network dissemination of information. Authorizing others to produce or provide audio book without grounds constitutes accessory infringement.
 
The disputearising from contents of copyright authorization contract can be resolved through interpretation of the clauses of the contract by reference to legal interpretation method. It needs a consideration beneficial to the protection of the author’s interests when assuming the intent indications of both parties.
 
[Synopsis] Appellant (plaintiff of first instance): Xie Xin
 
Appellee (defendant of first instance): Shenzhen Lanren Online Technology Co., Ltd. (Lanren Company), Hangzhou Chuangce Technology Co., Ltd. (Chuangce Company), Hangzhou Sibian Technology Co. , L td. (Sibian Company), Beijing Zhaohua Xishi Culture Development Co., Ltd. (Zhaohua Xishi Company)
 
As the copyright owner of many literary works (the works involved) such as Who Dares to Offend Me, Xie Xin found that Lanren Company illegally provided online listening service of the works involved through information network on the website it operated. He fixed the evidence by notarization. After communication, Xie Xin found from the documents provided by Lanren Company that the latter’s provision of online book listening service was authorized tier upon tier by Chuangce Company, Sibian company and Zhaohua Xishi Company.
 
The court ascertained, after trial, that Xie Xin signed a contract to authorize the right to network dissemination of information and of reauthorization of such right as well as “the right of production, reproduction and sale of electronic publications” of the works involved to Chuangce Company in 2013.
 
In 2014, Chuangce Company authorized Sibian Company to produce audio books of the works involved, and to exercise or reauthorize others to exercise the right to network dissemination of information of such works in audio format. In 2015, Sibian Company authorized Zhaohua Xishi Company to re-authorize the right to network dissemination of information of the works involved to Lanren Company to use on its lanren book listening platform. In the same year, Lanren Company signed a cont ract with Zhaohua Xishi Company to authorize the latter to use the audio books of the works involved on its platform.
 
Xie Xin argued that he had never authorized Chuangce Company, Sibian Company or Zhaohua Xishi Company to produce audio books of the works involved and to disseminate such audio books via network information, and that the four companies’ acts of producing and disseminating such works via network information without his authorization constituted joint infringement upon his copyright. He, therefore, brought a lawsuit in the court, requesting a judgment of joint infringement for ordering them to bear joint and several liability.
 
The Hangzhou Internet Court ascertained, through the trial, that Lanren Company’s act of providing online works involved without authorization constituted infr ingement, that the acts committed by Chuangce Company, Sibian Company and Zhaohua Xishi Company for successive re-authorization without legal authorization constituted accessory infringement, and that they shall bear joint and several liability.
 
According to specific situations such as the number of words and originality differences of the works involved, the court rendered a judgment on June 19, 2017 that the four defendants shall make payment of different compensations to the plaintiff. Xie Xin refused to accept the judgment of first instance and filed an appeal with Hangzhou Intermediate People’s Court, which rendered a judgment on September 25, 2017 that the appeal shall be rejected and the original judgment shall be affirmed.
 
[Judge’s Comment] There are three key legal disputes in this case. The first is the object of audio books and how to determine the nature of producing and providing online audio books in the sense of copyright law. The second is the rules that should be applied in the interpretation of copyright authorization contract.
 
The third is the liability borne by the precedent authorizer who has no corresponding right to do so.
 
(1) Determination of Act Nature
 
Generally speaking , the production of audio books includes three steps: reading aloud , recording and post production (addition of sound, music, etc.). All the three steps has not “changed” the expression of the words of the written works, which determines that it is unnecessary to consider whether such “change” satisfy the original standard to sufficient extent , and the audio books, therefore, do not satisfy the requirements of adaptation works.
 
In fact, the production of audio books by written works is just a change of the expression form or carrier of the works, and it is still a production of the works as a result.
 
(2) Interpretation of the Contract The essence of the dispute between both parties was the scope of the authorization under the contract. Specifically speaking, it was a dispute over the connotation of “electronic publications”.
 
Because China’s Copyright Law provides no conception of “electronic publications” and makes no legal definition of its connotation and denotation, it is necessary to make an interpretation of such words according to the contract.
 
“The contract is the law between the parties”. The method for interpreting the law can be used in the interpretation of the contract for reference. Specifically, first of all, from the background of the contract signing, audio book was not popular at the time of signing the letter of authorization, due to which it is difficult to conclude that both parties dispatched the offer and acceptance or not. Second, the letter of authorization with the author’s signature submitted by all the defendants except Chuangce Company were changed by adding the contents of “producing audio books” to its electronic documents through technical means, from which it can be proved that these authorized parties believed that the production of audio books was not within the scope of authorization; otherwise, they need not to tamper with it. Third, because the copyright law is formulated to protect the author’s rights and to encourage creation, there should be an interpretation beneficial to the author when interpreting a dispute over the understanding of the contract. For the above reasons, it should be ascertained that the production of audio books is not within the scope of authorization, and the defendant’s producing acts constitute infringement.
 
(3) Liability from “Unauthorized Authorization”
 
“Unauthorized authorization” satisfies the constitutive elements of infringement. First, where the “authorized party” has an intention to conduct an act restrained by proprietary rights and then seeks authorization from the “authorized party”, “authorization act” is in fact a promotion of direct act of the “authorized party”, due to which it is no incorrect to define the authorization act conducted by the  “authorized party” as an acct of helping. Secondly, although it knows or ought to know that it has no right to make an authorization, the “authorized party” still makes an authorization to its successive party, proving that it may have malicious intent or have negligence at least. Thirdly, the “authorized party” has made a direct infringement, and there is a connection between the occurrence of the act or the expansion of harmful consequence and the authorized act of the “authorized party”.
 
It has legal basis to ascertain that the unauthorized authorization act constitutes infringement because it satisfy the three constituent elements: “subjective state”, “objective helping act” and “direct infr ingement”. Accordingly, t h e court h e a r i n g t h e c a s e ascertained that the party directly conducting the act of network dissemination of information shall bear joint and several liability for all the infringement with its precedent parties who made such authorization.
 
“Voice book” or “audio book” is a kind of new cultural consumption method emerged in recent years. However, there have been no clear rules or authoritative and unified consensus for handling the disputes in this regard. The reasoning and explanation in the judgment can serve as a reference for the above questions, which clarifies the fol lowing rules: production of audio book does not constitute an adaptation of written works, but the production and dissemination of audio book should be clearly authorized by the copyright owner; otherwise, it constitutes infringement. The rules established in the case provide clear guidelines for the subjects in the industry and give full play to judicature’s positive role in promoting healthy development of the cultural industry.
 
(Translated by Zheng Xiaojun, Yuan Renhui)