Judicial Determination of Ownership of Photographic Works

By Jiang Qiang,[Copyright]

    At the start of the trial of copyright-related cases, the evidence of ownership is often a point of dispute between the parties. However, how to examine or determine such evidence has been less touched upon in judicial interpretations of the Supreme People’s Court or any guiding opinions of local courts. Recently with the development of technology, industries and operational patterns, there have been emerging issues with respect to the evidence of ownership. This author intends to analyze each category of works in this respect and present it for peer review. Photographic works are discussed in this article.
  I. Presumptive Authors of Digital Pictures
  If a digital picture has been published, the author can be presumed from the signature on the picture. A watermark is often used to sign a digital picture, which has been recognized as valid signature in already effective judgments. Another effective way to sign is to add a mark or copyright notice to the web page that publishes digital pictures. In the case that a pen name or a user name is used, the plaintiff who proves that it owns the account name and password to the blog, microblog or wechat site can be presumed to be the author of the pictures on the site.Photography companies that publish their pictures on their own website or any website of their affiliates together with a copyright notice can also be presumed to be the copyright owner of the pictures. This kind of proof is justifiable in certain aspects, and has been affirmed by the Supreme People’s Court for many times.
  II. How to Determine the Original of A Digital Picture
  If a digital picture has not been published, it is far more complicated to identify the author, as it is very difficult to determine the original of the picture.Digital pictures can be easily copied, pasted, uploaded or downloaded.Which picture is the original of the other picture? If the digital picture that the plaintiff provides cannot be proved to be the original, it is impossible to decide the plaintiff as the proprietor.It is then impossible to convince the defendant to accept it. If the plaintiff is compelled to prove its digital picture is the original, what should it do to prove it with evidence? The court that examines the evidence of ownership to find out the fact is strictly forbidden to get divorced from reality. Any overly stringent examination criteria will lead to nobody able to prove or protect their rights.
  In Qiao Tianfu vs Hexun Online Information Consultation Service Co., Ltd. for copyright infringement, the Beijing Haidian District People’s Court held that the image files in the JPEGP format that the plaintiff presented to the court contained large-size, highpixel, high-resolution pictures with complete photographic information.These were the primary evidence to prove the originality of the pictures.The defendant who did not admit the authorship of the plaintiff failed to provide any counter-evidence.
  As no evidence to the contrary was submitted, the court presumed that the party who possessed the original image files of the digital pictures was the author. [Judgment Haiminchuzi No. 13986 (2013), Beijing Haidian District People’s Court] The idea in the judgment is reasonable. To disseminate it on the Internet, a digital picture is usually transformed into another format with a smaller size, fewer pixels and lower resolution, and removed of any photographic information.
  III. Criteria of Evidence, Burden of Proof and Capacity to Produce Evidence
  Criteria of evidence. Be the author presumed from the signature on the picture or determined from the original, the evidence of ownership does not need or is required to prove the identity of the author 100%. In civil proceedings, high probability and preponderance of evidence are adopted. Under the Copyright Law, the presumption of the author from the signature on the picture is intended to lessen the burden of proof on the proprietor if appropriate. The examination of the evidence of ownership in photographic works should not be done with undue stringency; otherwise, it may accidentally damage the legal rights or interests of the proprietor. In Judgment Haiminchuzi No. 13986 (2013), Beijing Haidian District People’s Court held that in consideration of how photographic works are created, their characteristics and the regular patterns of their creation, any overly stringent criteria for the proof of authorship in photographic works will unduly hinder the author from exercising his/her rights. In copyright-related civil proceedings, the burden to prove the ownership should be reasonably allocated between the parties. The principles for the shift of the burden of proof and the preponderance of evidence should be applied, in order to find out the fact and reach a balance between the parties and their interests. This author believes that the thoughts and measurements in the ruling were appropriate.
  Burden of proof. A court judgment is no more than a presumption of the signatures on or the originals of photographic works. If the defendant raised counter-evidence, the burden is shifted onto the plaintiff again, who has to provide supplementary evidence. In GettyImages (China) vs Zhenglin Co., Ltd. for copyright infringement, in the first-instance trial, the plaintiff produced evidence that the website of GettyImages contained the pictures concerned, as well as a declaration of rights, and a power of attorney. The defendant only challenged the ownership of the plaintiff, and provided no other counter-evidence. The first-instance court held that the plaintiff was the proprietor. In the second-instance trial, the defendant produced evidence that the pictures concerned were sold by a third party on the Internet and the pictures displayed by the third party bore the watermark of the third party, together with the signature of the photographer.GettyImages argued that such third party was one of its sellers, without providing relevant evidence. The second-instance court ruled that the judgment of the first-instance court be dismissed and the claim of the plaintiff be overruled. In the retrial of the case, GettyImages provided the distribution agreement for the pictures concerned, a statement from the website and a statement from the photographer. The evidence was there to prove that the third party was one of the distributors or branch offices of GettyImages, and that the photographer with his/her signatures on the pictures concerned was employed by GettyImages.The Supreme People’s Court ruled to dismiss the judgment of the second-instance court and affirm GettyImages as the proprietor.[Judgment Minchuzi No. 57, Supreme People’s Court (2014)] The case is a very good example how the burden of proof for ownership was shifted between the parties.
  As this author sees i t , the relationship between the criteria of evidence, the burden of proof and the capacity to produce evidence is as follows: 1. The criteria of proof are proportionate to the capacity to produce evidence. The stronger the capacity to produce evidence, the higher the criteria of proof. The weaker the capacity to produce evidence, the lower the criteria of proof. 2. The criteria of proof are proportionate to the subject matter of the legal action. The larger the subject matter, the higher the criteria of proof. The smaller the subject matter, the lower the criteria of proof. 3. The capacity to produce evidence is proportionate to the burden of proof. The stronger capacity a party has to produce evidence, the more justifiable that the party is required to bear the burden of proof. The weaker capacity a party has to produce evidence, the more reasonable to shift the burn of proof from the party.
  Some photography companies that publish their pictures on their own websites or any other websites of their affiliates use a notarial document of the website or a printout of the web page as evidence of ownership. This method to produce evidence has been widely questioned in practice. As this author believes, a photography company controls the server of its own website and is capable to add or remove any pictures on the website at any time or from time to time. Moreover, a large photography company has a mass amount of pictures, for which the traditional approach to produce evidence of ownership is not feasible.In view of this, large photography companies are weak in producing evidence of ownership for their photographic works. In addition, in copyright infringement involving photographic works, the subject matter is often of a small value and the award given is usually little.Although it has the ability to add or change any picture on its server, a photography company usually does not have the motivation or necessity to do that. In consideration of the capacity to produce evidence, the subject matter of the legal action and the characteristics of photographic works in their creation and dissemination, the photography company should be deemed as having duly fulfilled its obligation of proof and satisfied the examination criteria. Thus, the burden of proof should be shifted onto the defendant.In Judgment Minchuzi No. 57 (2014), the Supreme People’s Court stated the following. “If overly stringent criteria are applied to preliminary evidence by, for example, requiring that an authorization be obtained from the photographer for each and every one of his/her pictures, or that each and every picture be registered of their copyright, it will, without doubt, create a huge burden on the proprietor. Moreover, the related costs, if found necessary to stop the infringement, will finally be paid for by the infringer. In the first-instance trial, GettyImages claimed for its rights by presenting the power of attorney, the statement of the website and the watermark on the pictures concerned. It should be deemed as having fulfilled its obligation to provide preliminary evidence. It is proper for the first-instance court to determine GettyImages as a competent party, as no counter-evidence was raised.” This author fully agrees with the Supreme People’s Court.
  IV. Emerging Digital Evidence in the Examination of Ownership
  Time stamps are new evidence that has emerged from judicial practice in recent years. They often appear in the examination of ownership in photographic works, when used by the plaintiff to prove the time it possesses the digital file. However, the judiciary is divided as to how to deal with this “new thing”.
  In GettyImages (China) vs China B-to-B Holdings Co., Ltd. for copyright infringement, the web page printouts and the time stamps from the plaintiff showed that the photographic works concerned could be found at www.gettyimages.ca under the brand Stockbyte. The works bore the watermark “GettyImages,” with a copyright notice at the bottom of the web page. The above evidence was not challenged by the defendant.The Intellectual Property Court of Beijing held that the time stamp was a kind of digital evidence to prove that the evidence concerned could not be tampered with since the time stamp was attached and the unique digital fingerprint was given.According to the web page printouts and the time stamp, GettyImages should be deemed as having fulfilled its obligation to produce preliminary evidence. [Judgment Jingzhiminzhongzi No. 1986 (2015), Beijing Intellectual Property Court]
  In GettyImages (China) vs Morning Twilight House for copyright infringement, GettyImages submitted three Certificates of Credible Time Stamp, together with DVDs, from UniTrust Time Stamp Authority.The certificates showed that the documents (or the digital data) under the certificates had existed since the time stamp was given. They remained complete and had not been changed.The DVDs contained videos that were made by GettyImages employees on how the website www.gettyimages.ca was accessed and the pictures concerned were downloaded. With the evidence, GettyImages intended to prove that the pictures concerned already existed on the website www.gettyimages.ca when the certificates were given. The Intellectual Property Court of Beijing held that the qualification or not of UniTrust Time Stamp Authority to issue such certificates was uncertain, for which no evidence was presented to the court from GettyImages. Even if UniTrust Time Stamp Authority were qualified, the certificates it issued would prove only the uploading time instead of the document uploaded.In other words, they proved only that the documents concerned were uploaded by GettyImages to the website of UniTrust Time Stamp Authority at the time the time stamp was given. The source of the documents and how they were operated were under the control and operation of GettyImages alone, which was not effectively supervised by a third party. Therefore, the contents of the DVDs could not be guaranteed to be objective, just or legal. As the evidence was not accepted by Morning Twilight House, it was not admitted by the court for its intended purposes. [Judgment Jingzhiminzhongzi No. 1868 (2015), Beijing Intellectual Property Court]
  The two cases above are different situations with different court findings. The courts’ opinions vary with respect to the time stamp and its weight of proof. As far as this author can see, in judicial practice, it takes time to verify the effectiveness or not of the time stamp or for the judicial circle to reach a common understanding on the “new thing”.The time stamp and its related areas should be further studied to unify our understandings, so as to provide clear guidance for industrial development.
  It is hard to certify the time that the evidence is formed, be it the traditional or the emerging digital evidence. In some cases, the time that the evidence is formed is debated most severely, as it determines the nature of the case.Particularly in cases involving intellectual property rights, the filing date, the publication date, the use date, and the date of completion of the work are essential time points.It has become a need in industrial development or judicial practice to prove the time point for the formation of digital evidence. Private organizations that are sensitive to it see a huge market before them. They cannot wait but to develop the time stamp certification service. Does it require an administrative license or any particular qualification from the service provider? Such questions remain to be discussed. With respect to the requirement of industrial development and judicial practice, this author agrees with Judgment Jingzhiminzhongzi No. 1986 (2015), in that it is inappropriate to reject the time stamp evidence solely for the time stamp issuer that does not have a proper qualification. The time stamp certification is a commercial act and obviously less neutral than notarization. However, reportedly the time stamp certifying authority charges RMB 10 per certificate and has fewer interests in either party to a case. It does not seem to be affected in this respect. If the notary public does not come in timely, considering the large demand from the industry, a lenient attitude should be adopted towards the accession of digital evidence. The weight of digital evidence can be determined on a case-by-case basis, in combination with other evidence. With the enrichment and development of judicial practice, a common understanding will come into being with respect to the examination and certification of digital evidence.

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