The film and television industry | how the "solo broadcast" rights holder proposes to stop the infringement and damages

summary

As one of the most important copyright property rights in the current network environment, the right of information network dissemination has attracted much attention in recent years. Especially in the film and television industry and sports events, the licensee pays a high consideration for obtaining the right to "solo broadcast". Network piracy or illegal retransmission has brought huge economic losses to the exclusive licensor of the right of dissemination of information networks, and how the exclusive licensor should propose to stop the infringement and damages is worth exploring.

Introduction to the facts of the case

Company A owns the copyright of the TV series "New So-and-So". On September 2, 2011, Company A issued a power of attorney to Company B, granting the right to disseminate the information network of the film to Company B in an exclusive and exclusive manner, and the authorization period was from September 2, 2011 to September 1, 2016.

During the above-mentioned period, Company B discovered that Company C provided the public with online broadcasting services for the TV dramas involved in the case on the website and video software it operated. In 2014 and 2016, Company B notarized Company C's infringement and repeatedly sent "Lawyer's Letters" to Company C, requesting Company C to immediately stop providing users with online broadcast services for the videos involved in the case on the websites and video software to which it belonged and operated, and to compensate Company B for economic losses and rights protection costs. Company C did not pay compensation.

Company B filed a lawsuit with the court, requesting that Company C be ordered to compensate Company B for economic losses and reasonable expenses totaling * 10,000 yuan (including lawyers' fees * 10,000 yuan).

Company C argued that it had signed a cooperation agreement with Company A on October 10, 2017, obtained a non-exclusive right to use the films involved in the case from September 1, 2017 to August 31, 2019, and submitted a cooperation agreement and a power of attorney to the court.

Court judgment

Company C disseminated the work involved in the case in which Company B enjoys the right of information network dissemination on its website and video software without permission, so that the public can obtain the work at a time and place selected by it, infringing Company B's lawful right to the information network dissemination of the work involved in the case, and shall bear the corresponding liability for infringement compensation.

As for the specific amount of compensation losses, in this case, there is no evidence directly proof of the actual losses of Company B and the illegal gains of Company C, and the court of first instance will comprehensively consider the popularity and commercial value of the films involved in the case, the nature and scope of the infringement, the scale of operation of Company C, and other factors to determine the amount of economic losses as appropriate. Regarding the reasonable costs of safeguarding rights, considering that Company B has indeed retained a lawyer to appear in court, which is a necessary expense, the court of first instance supported the cost of Company B's hiring of a lawyer.

First-instance judgment: Defendant Company C shall, within 10 days from the effective date of this judgment, compensate Plaintiff Company B for economic losses * 10,000 yuan and reasonable expenses for rights protection * 10,000 yuan.

Company C was not satisfied, and appealed on the grounds that "after obtaining legal authorization, the subjective fault was relatively small, the popularity of the works involved in the case was low, and the amount of economic losses determined by the court of first instance was too high", the court of second instance rejected the appeal and upheld the original judgment.

Lawyer analysis

In cases of disputes over infringement of the right of dissemination of information networks, in order to prevent the further expansion of the consequences of damage, the cessation of infringement is often the first demand of the right holder, which is urgent. The method and extent of stopping the dissemination of infringement on the Internet vary from case to case, generally requiring the deletion of infringing content disseminated on the Internet or disconnecting the infringing link, and the degree of requesting the cessation of infringement should be limited to the infringing content and not beyond the scope of the work. In practice, the right holder requires the app containing the infringing content to be removed from the shelves or to stop the operation of the software and the game, which obviously exceeds the scope and extent to which the infringer should bear the cessation of infringement.

For the remedies of right holders, they are generally divided into private remedies and public remedies.

With regard to private remedies, the methods usually adopted by rights holders include: sending notice to the infringing perpetrator, making a complaint to the app store or platform, and filing a complaint with the relevant administrative department. In this case, Company B sent a lawyer's letter as a remedy, but the infringer, Company C, did not compensate.

When private remedies cannot achieve the effect of stopping infringement, the right holder will provide relief through judicial means. According to the second paragraph of Article 2 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Examination of Acts of Preservation of Acts of Intellectual Property Disputes, "Where the licensee of an intellectual property licensing contract applies for a pre-litigation order to stop the infringement of intellectual property rights, the licensee of the exclusive licensing contract may apply to the people's court alone; the licensee of the exclusive licensing contract may apply separately if the right holder does not apply; the licensee of the ordinary licensing contract may file a lawsuit in its own name with the express authorization of the right holder, Separate applications can be made. ", based on the needs of urgency, the right holder may use the pre-litigation injunction as a means of relief to safeguard its legitimate rights and interests. For example, Tencent applied to the court for conduct preservation against a game infringing its copyright, and obtained the support of the Guangzhou Intellectual Property Court.

In terms of damages for infringement, rights holders need to pay particular attention to the provisions of the new Copyright Law (which came into effect on June 1, 2021) on damages for copyright infringement. According to Article 54 of the Law, where a copyright or copyright-related right is infringed, the infringer shall compensate according to the actual losses suffered by the right holder or the infringer's illegal gains; if the actual losses of the right holder or the infringer's illegal gains are difficult to calculate, compensation may be given with reference to the royalties of the rights. Where the actual losses of the right holder, the illegal gains of the infringer, or the royalties of the rights are difficult to calculate, the people's court shall, on the basis of the circumstances of the infringing act, make a judgment to give compensation of between 500 yuan and 5 million yuan. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement.

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