Case 4
Dispute over Network Dissemination of Information Right for “Layout Design”
Trial Docket: (2016) Jing0108MinChu No. 5561 Appeal Docket: (2017) Jing73MinZhong No. 164
[Headnotes] Layout design is to set out the plan for a printing work, including the contents, columns, fonts, line spaces, punctuations, etc., and the arrangement of these elements.
Layout design is the result of publisher’s completed editing work, in the protectable range of neighboring rights. Different from work of authorship, layout design is hardly original, and would not qualify for copyright protection under any one of the seventeen items of copyrightable subject matters within Article 10 of Copyright Law, whose protection being limited to reproduction.
[Synopsis] Appellant (Plaintiff below): China Architecture & Building Press (CABP) Appellee (Defendant below): Beijing Yisheng Leju Information Services Ltd. (YiSheng LeJu) CABP, owner of the exclusive right of publication for the textbook Management of Architectural Engineering Projects, (4th Ed.), believes that YiSheng LeJu, without permission, offered to public the download service on its website “dichan.sina.com.cn” in violation of its layout design right. CABP contends that Copyright Law gives a publisher the right under Article 36 to permit another to use, or prohibit from using, its layout design of books or periodicals, where the word “use” under this Law is not confined to reproduction, which is merely one act within use, but not all; that as publisher, appellant has the right to prohibit another from using the layout design at issue by means either of traditional paper work for reproduction, sale or dissemination, or of network dissemination of information with scanned ebooks using the layout design at issue. In sum, CABP prays for 30,000 Yuan in compensatory damages plus 10,000 Yuan for reasonable expenses against YiSheng LeJu.
YiSheng LeJu responses by arguing that the right of layout design does not include network dissemination of information right; that the reproduction or uploading of the book at issue, being made by Internet customers, rather by YiSheng LeJu, cannot be infringement of the layout design by YiSheng LeJu, who is merely an information storage service provider, entitled to the safe harbor protection for customer-provided contents; and that the scanned book uploaded by the customer is for its contents rather than for its layout designs. In sum, YiSheng LeJu does not infringe the layout design right of the book at issue.
The Haidian District People’s Court at trial finds that layout design is to set out the plan for a printing work, including the contents, columns, fonts, line spaces, punctuations, etc., and the arrangement of these elements. Layout design is the result of publisher’s completed editing work, in the protectable range of neighboring rights.
The publisher has the right to permit another to use, or prohibit from using, its layout design of books or periodicals.
Taken together with the meaning of layout design, its use, industry customs, and other factors, the protection range is narrow, mostly limited to reproduction right. The subject matter for network dissemination of informationright covers works, performances, or audio/ visual works, but not layout designs. Therefore the court rejects CABP’s contentions.
After the trial court’s decision, CABP is not satisfied and appeals to the Intellectual Property Court of Beijing. The appeals court finds that layout designs, unlike a work of authorship, can hardly satisfy originality requirement, incapable thus of the meaningful copyright protection and unable to fit in any of the seventeen copyrightable subject matters under Article 10 of Copyright Law, whose protection is usually limited to the reproduction right. The court affirms.
[Judge’s Comment] Layout design is the result of a publisher’s completed editing work, protectable in the range of neighboring rights. Unlike a work of authorship, a layout design can hardly satisfy the originality requirement, incapable of meaningful copyright protection, and unable to fit in any of the seventeen copyrightable subject matters under Article 10 of Copyright Law, whose protection is limited to reproduction right only. If protection of layout design is read into the seventeen copyrightable subject matters as the same for works of authorship eligible for network dissemination of information right under Article 10 of Copyright Law, it will not comply with the legislative intent to distinguish between narrowly defined copyright and neighboring rights. The layout design protection may not cover network dissemination of information, neither can layout designer claim infringement against another for the acts of placing the layout design into Internet, or contributory infringement against an ISP.
（Translated by Zheng Xiaojun, Yuan Renhui)
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