The first case of biological model property rights protection in China: "Foraminifera" metamorphosis

"Foraminifera" copyright infringement dispute case

Guo Jing, Judge of Qingdao Intellectual Property Tribunal

The case was announced by the Supreme Court as one of the "Top Ten Innovative Cases for the Judicial Protection of Intellectual Property Rights in Chinese Courts".

Judges of the court of second instance: Shandong Provincial High People's Court, judge Liu Xiaomei (undertaker), judge Zhang Liang, judge Zhang Jinzhu, clerk Shi Qing.

Result of the second-instance judgment: The appeal is rejected and the original judgment is upheld.

Adjudicators of the court of first instance: Qingdao Intermediate People's Court, Judge Guo Jing (undertaker), Judge Ji Xiaoxin, Judge Yan Chunguang, Clerk Chen Wenjuan, Clerk Wei Wei.

Results of the judgment of the first instance: First, within 30 days after the judgment took effect, the Defendant Yantai Environmental Office removed the relevant introductions on the bases of nine infringing sculptures, including Novum laughing mouth worm, Protus sabre worm, wrinkled small three-line worm, elegant currency worm, Brady Flint worm, rue engel bread worm, fine-grained dome-back worm, Mary lun's screen-shaped larval worm, and Ray's enterprise worm, and marked in a prominent position that "it was made according to the foraminifera model of the Institute of Oceanography and Zheng Shouyi, and the local deformation treatment". At the same time, the specific names of foraminifera are indicated (in turn, leaf weaver worm, Malayan pit wall worm, wrinkled small three-line worm, striated tree mouth worm, Brady Flint worm, Zhongli false domeback worm, Japanese wheel worm, Kurukshansky as an alien worm, wicker enterprise worm), the specific form must be examined by this court, and if it is not performed within the time limit, this court will forcibly remove it according to law, and the required expenses will be borne by the defendant Yantai Environmental Office; second, the defendant Yantai Environmental Office shall pay 50,000 yuan in royalties to the plaintiff's Ocean Research Institute within thirty days from the effective date of this judgment; Defendant Liu XX publicly apologized to the plaintiff Ocean Research Institute and Zheng Shouyi in Yantai Daily or Yantai Evening News within 10 days from the effective date of this judgment, and the content must be reviewed by this court, if defendant Liu XX refuses to perform, this court will publish the main contents of the judgment in Yantai Daily or Yantai Evening News, and the costs will be borne by defendant Liu XX; If the two defendants refuse to perform, this court will publish the main contents of the judgment in Yantai Daily or Yantai Evening News, and the costs will be borne by the two defendants; fifth, the defendant Liu X shall compensate the plaintiff for the economic losses and reasonable expenses of the Chinese Academy of Sciences within ten days from the effective date of this judgment; 6. Reject the other litigation claims of the plaintiff Institute of Oceanography and Zheng Shouyi.

The image originates from the internet

Plaintiffs: Institute of Oceanology, Chinese Academy of Sciences (institute of oceanography), Zheng Shouyi (academician of Chinese Academy of Sciences)

Defendants: Mr. Liu, Laizhou Wanlida Stone Industry Co., Ltd. (hereinafter referred to as Wanlida Company), Yantai Environmental Art Management Office (hereinafter referred to as Yantai Environmental Office)

Case Summary: Zheng Shouyi is an academician of the Chinese Academy of Sciences and a researcher at the Institute of Oceanography, who has produced a number of foraminifera models, the copyright of these models belongs to the Institute of Oceanography of the Chinese Academy of Sciences, and Zheng Shouyi enjoys the right of attribution. In 2008, Zheng Shouyi discovered that 10 of the newly completed sculptures on Binhai Middle Road in Yantai City had "foraminifera" sculptures that were very similar to their "foraminifera" models. The above-mentioned sculpture was manufactured by Liu Moumou in cooperation with Wanlida Company and purchased and placed by Yantai Environmental Office. The Institute of Oceanography and Zheng Shouyi believed that the actions of the three defendants infringed their copyrights, and requested the court to order the three defendants to stop the infringement, apologize and compensate for economic losses.

After trial, the court held that the foraminifera model involved in the case was independently created by Zheng Shouyi, which was the result of artistic abstraction and aesthetic modification of foraminifera, reflecting his personalized choice of specific growth stages, colors and expression methods of foraminifera, and constituting a work within the meaning of the Copyright Law. According to the needs of artistic expression, the alleged infringing sculpture has been artistically processed on the basis of the "foraminifera" model, adding a new creative component, but this processing does not depart from the "basic expression" of the model work, but is a deduction of the model work, and the actions of the three defendants infringe the copyright enjoyed by the right holders in the model work. Accordingly, the three defendants were ordered to stop the infringement, apologize and compensate for economic losses.

Typical significance: This case is the first case in China to define the attributes of works and protect property rights by biological models, and was selected as one of the "Top 10 Innovative Cases of Judicial Protection of Intellectual Property Rights in Chinese Courts" in 2012, and was included as a typical case in the Bulletin of the Supreme People's Court (No. 4, 2013). This case clearly puts forward the adjudication idea of determining the work, that is, the object of copyright protection is the original expression of ideas and facts, and the following points should be grasped when specifically determining the work: 1. whether it has a certain form of expression and does not belong to the objective facts or abstract ideas itself; 2. whether it is created independently by the creator, reflecting the creator's personalized choice, judgment and skills; 3. whether it is the result of intellectual labor.

The innovative significance of this case lies in the useful exploration of the following aspects: 1. Correctly identify the original expression of the work. The model developed by scientists based on natural biology reflects their personalized selection and expression methods, which is the result of original labor and should be protected by the Copyright Law. 2. Correctly define the act of reproduction and deduction. The creation of a derivative work on the basis of the original work is not a copying act, because this derivative work does not change the basic expression of the original creation idea and constitutes a derivative work. 3. "Cessation of Infringement" shall be treated flexibly. In order to avoid the waste of social wealth, under the premise of fully considering the interests of the right holder and the interests of the public, in the assumption of the liability of "cessation of infringement", the demolition of the infringing sculpture may not be ordered, but an alternative economic compensation measure such as paying fair royalties may be adopted. It not only protects the legitimate rights and interests of creators, but also takes into account the social public interest from infringement, and realizes the effective unification of legal effects and social effects.

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Source: Shandong Intellectual Property Trial