You may not have seen the book "Return to the Wolves" written by the author of "Wolf Totem", but the movie "Return to the Wolves" must have seen it, right? Recently, the Beijing Intellectual Property Court concluded a dispute over the infringement of the exclusive publishing rights of "Return to the Wolves".
Let's take a look at the details of the case with Xiao Zhi
Brief introduction of the case
Changjiang Literature and Art Publishing House signed a contract with Gong Mou (pen name Li Weiyi) to obtain the exclusive publishing rights of the book "Return to the Wolves" (hereinafter referred to as "Heavy") for a period of 5 years from the date of publication of the book.
During the official publication of the "Heavy" book by the Changjiang Literature and Art Publishing House, it was found that there was a book published by anhui Children's Publishing House on the market, "Let Me Accompany You Back to the Wolves" (referred to as the "Let") book), which was basically the same as the content of the "Heavy" book published by it. Changjiang Literature and Art Publishing House believed that the book "Let" published by Anhui Children's Publishing House authorized by Gong Mou infringed its exclusive publishing rights, so it sued the court to request that the infringement be stopped, the impact eliminated, and the losses be compensated.
The first-instance judgment found that the book "Jean" was an adaptation of the book, and its publication and distribution time was within the validity period of the exclusive publishing rights enjoyed by the Changjiang Literature and Art Publishing House for the "Heavy" book, and found that Gong's entrustment of Anhui Children's Publishing House to publish the "Let" book constituted infringement, so it ordered Gong and Anhui Children's Publishing House to compensate Changjiang Literature and Art Publishing House for economic losses of 50,000 yuan. Gong Mou and Anhui Children's Publishing House appealed against the first-instance judgment. After trial, the Beijing Intellectual Property Court ruled to reject the appeal and upheld the original judgment.
Judges interpret the law
The "Jean" book series created by Gong Mou later is based on the "Heavy" book and the different expressions of the young reader group formed by the secondary creations such as deletion, rewriting, and addition, which belong to the new works formed by the adaptation of the "Heavy" book. However, Gong's exercise of rights over the new work of "Jean" is not without restrictions.
According to Article 12 of the Copyright Law, "the copyright of a work resulting from the adaptation, translation, annotation or collation of an existing work shall be enjoyed by the person who adapted, translated, annotated or arranged, but the copyright of the original work shall not be infringed upon when exercising the copyright." This means that Gong authorized anhui children's publishing house to publish the "Let" book, and cannot infringe on the exclusive publishing rights enjoyed by the Changjiang Literature and Art Publishing House for the "Heavy" book. In this case, Gong X and Anhui Children's Publishing House both appealed and claimed that the first-instance judgment erroneously determined the publication time of the "Heavy" book, holding that there was no overlap between the publication time of the "Let" book and the exclusive publishing copyright period of the "Heavy" book, so it did not constitute infringement.
After trial, the Beijing Intellectual Property Court held that according to paragraph 1 of Article 1 of the contract involved in the case, "during the validity period of the contract, Party A grants Party B the exclusive right to use the Chinese simplified Chinese text of the above-mentioned works in the form of books" and Article 9, Paragraph 2 that "This contract must be signed and sealed by both parties, and the official signing date is April 11, 2012, calculated from the date of publication of the above-mentioned work, and the validity period is 5 years", the exclusive publishing rights enjoyed by Changjiang Literature and Art Publishing House for the book "Heavy" are from "Heavy". The end of the book is 5 years from the date of publication.
Therefore, the determination of the publication time of the "Heavy" book determines the determination of the deadline for the Changjiang Literature and Art Publishing House to enjoy the exclusive publishing right, and then affects the judgment of whether infringement is constituted. To this end, it is necessary to clarify the meaning of "publication" in the sense of the Copyright Law. According to Article 58 of the Copyright Law, "Publication as used in Article 2 of this Law refers to the reproduction and distribution of works. Although this provision is an interpretation of Article 2 of the Copyright Law, the word "publication" also exists in other articles such as Article 31 of the Copyright Law. Therefore, according to the principle of expressing the same meaning in accordance with the legal interpretation, the same interpretation should be applied. According to Article 10 of the Copyright Law, the right of reproduction is the right to make one or more copies of a work by means of printing, copying, rubbing, audio recording, video recording, ripping, remake, etc.; the right of distribution is the right to provide the original or copy of the work to the public by selling or donating it.
It can be seen from this that publication in the sense of the Copyright Law refers to the act of making a work into a certain number of copies and making it available to the public by selling or donating it. Therefore, even the so-called "sample books" fall within the scope of publishing as long as they are works copied by the publisher and made available to the public in accordance with the law.
Specific to the determination of the publication time of the "Heavy" book, although according to the practice of the publishing industry, the publication time recorded on the copyright page of the book is generally only accurate to a certain month of a certain year, and will not be specific to a certain date, but the purpose of determining the actual publication time of the "Heavy" book in this case is to determine the deadline for the exclusive publication right of the "Heavy" book, which is not inconsistent with the industry practice of recording the publication time on the copyright page of the book.
In this case, the copyright page of the "Heavy" book stated that it was published in July 2012, but according to the facts of the on-site display and recommendation of the "Heavy" book by Hebei Satellite TV, at least at the time of the recording of the column on June 20, 2012, the "Heavy" book had actually been published. However, where the existing evidence cannot prove that the existence of the "Heavy" book existed earlier than the exact date of publication on June 20, 2012, the first-instance judgment found that the actual publication date of the "Heavy" book was June 20, 2012, and based on this, it was not improper to determine that the deadline for Changjiang Literature and Art Publishing House to enjoy the exclusive publication right for the "Heavy" book was June 19, 2017.
Based on the above analysis, it can be seen that the key to determining whether the "Jean" book infringes the exclusive publishing rights of the "Heavy" book is to confirm whether the "Jean" book has been published on June 19, 2017 when determining whether the publication time of the "Jean" book is within the exclusive publishing rights period of the "Heavy" book.
In this case, the publication date recorded on the copyright page of the "Jean" book was June 2017, and the Changjiang Literature and Art Publishing House ordered the "Jean" book from Dangdang.com on May 25, 2017, and Dangdang.com issued an invoice on June 8, 2017. Therefore, it can be confirmed that the "Let" book was published before the end of the exclusive publishing rights of the "Heavy" book on June 19, 2017, so Gong's act of authorizing Anhui Children's Publishing House to publish the "Let" book has constituted an infringement of the exclusive publishing right enjoyed by the Changjiang Literature and Art Publishing House.
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The legal officer proposed
The exclusive publishing right comes from the exclusive transfer of the right of reproduction and distribution enjoyed by the copyright owner. No one, including the copyright owner, may publish and distribute the same work in the same way within the territory and time limit authorized by the publication contract. Moreover, since the copyright owner has temporarily ceded its reproduction and distribution rights, the copyright owner can no longer grant this right to others.
In this case, although the book "Jean" was a new work formed by the same author Gong's adaptation of the "Heavy" book, since Gong had already granted the exclusive publishing rights of the "Heavy" book to the Changjiang Literature and Art Publishing House, his exercise of the copyright in the derivative work should also be premised on not infringing the exclusive publishing rights enjoyed by the Changjiang Literature and Art Publishing House on the "Heavy" book.
Source: INTELLECTUAL PROPERTY Beijing
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