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China IP Magaziine

Copyright Dispute over a Statement of Litigation Argument

发布时间:2018-12-06
Case 7
Copyright Dispute over a Statement of Litigation Argument
Trial Docket: (2017) Zhe06MinChu
 No. 57 Appeal Docket: (2017) ZheMinZhong No. 478
 
[Headnotes] Statement of court argument by its very nature is outside the range of “a document for legislative, administrative or judicial process,” incapable of judicial protection under Article 5 of Copyright Law. Therefore, it may be subject to copyright protection if the wording satisfies originality requirement.
 
[Synopsis] Appellant (Plaintiff below): ZHANG Wenjiang
Appellant [sic] (Defendant below): QIAN Wenzhong
 
In 2014, ZHANG Wenjiang was engaged by Mr. ZHANG to be his defense counsel in a case of obstruction of testimony, and submitted a defense statement to the procuratorial court of Zhejiang Province on 15th of October. QIAN Wenzhong, together with another attorney, was engaged by Mr. Xu, who was an accomplice of Mr. ZHANG accused in a separate case, to be his defense counsel for the arraignment, and submitted in the early part of 2015 a Defense Argument for the Arraignment to the procuratorial court of Xinchang. Upon comparison, this Defense Argument had so many identical expressions as the Defense Statement. ZHANG Wenjian believes that he has copyright for his Defense Statement, and QIAN, by copying the main part of his Statement, has committed infringement. He therefore sued to claim an apology and seek damages of 68,000 Yuan.
 
The Intermediate People’s Court of Shaoxing at trial finds: that ZHANG Wenjiang’s Statement is a literary work, protectable under the law; that their clients are accomplices of separate cases, for which QIAN Wenzhong may, when he reviews the cases, het his hand on ZHANG’s Statement; that QIAN, whose Defense Argument is largely lifted from ZHANG’s Statement and is literally similar thereto, has infringed ZHANG’s copyright, and should be liable; and that ZHANG is not entitled to an apology since he fails to show by evidence that his reputation is injured. The court decrees: QIAN Wenzhong is liable to ZHANG Wenjiang for damages in the amount of 20,000 Yuan.
 
Both ZHANG and QIAN are dissatisfied and appeal to the High Court of Zhejiang. The High Court dismisses and affirms on October 27, 2017.
 
[Judge’s Comment] The court believes that ZHANG’s Statement, though following the basic format of defense statements, is a personal choice and expression with originality and a copyrightable literary work of logical reasoning to support his innocence argument by relating to relevant facts, evidence and his understanding of statutory provisions over the actual dealing, the absence of intention to causing injuries to other creditor, the absence of forgery, and illegal collection of evidence by the police, etc. Meanwhile the defense argument is the writing and opinion by the defense counsel in favor of the defendant, having no public interest involved and falling outside the provision of “legislative, administrative or judicial documents” defined by Article 5 of Copyright Law. Since the clients they represent are accomplices in separate cases, it is possible that QIAN may get his hand on ZHANG’s Statement as his Arraignment Defense Argument so highly coincidental to ZHANG’s Defense Statement as to be substantially similar, which is substantial copying of ZHANG’s work without permission, infringing ZHANG’s copyrighted work. As the civil liabilities, since the Argument lifted from ZHANG’s Statement is used for a criminal case with limited public access without obvious damage to ZHANG’s persona, it is not inappropriate for the trial court to deny the request for an apology.
 
As to whether the writings of a defense argument can be a copyrightable work, there is no clear provision in Chinese law, and opinions are split among professionals. The decision of this case clarifies that a defense statement is within the meaning of the uncopyrightable “legislative, administrative or judicial document” under Article 5 of Copyright Law, and if it reflects the personal choice and expression of a counsel, satisfying the originality requirement, it will be a copyrightable literary work. But a court, when making a comparison of substantive similarities, should take into account the special features of the defense statement by ignoring the defense points of view, the basic formats, facts of a case, allegations, and other common constituents, for a heightened standard, so that the protection will match the originality to avoid over-protection against fair use and further creation.
 
(Translated by Zheng Xiaojun, Yuan Renhui)