Text | Banzhou District People's Court of Zunyi City, Guizhou Province, Ma Wei, Xia Dingqian
The use of the published work of others in a news report is divided into necessary and non-essential use. Necessity use refers to a situation in which a news report cannot be formed without the use of the work, i.e., "the unavoidable reproduction or quotation of a published work". For example, in order to dedicate Qi Baishi's "Shrimp", it is necessary to use the work, otherwise it will not be possible for the public to immerse themselves in the content of the news report. Non-essential use refers to the fact that the news report does not inevitably reproduce or quote the published work of others, and can also achieve the purpose of the news report. In the theory of copyright law, the necessary use of the published works of others in news reports constitutes "fair use of news reports", and does not require the consent of the copyright owner and does not need to pay remuneration to him. However, the characterization of non-essential use is prone to controversy. When hearing such cases, the courts are faced with the evaluation and weighing of interests between the legal protection of the legitimate copyright of the right holder and the basic right of the public to know about news reports.
The origin of the problem
On May 25, 2022, Company T obtained an exclusive license for the copyright property right of the photographic work "Red Leaf Valley in Qingzhou, Shandong" from Chen Moufang, an outsider to the case. The photographic work was created and published by Zhao Mouqing, an outsider to the case, on October 29, 2019. On September 19, 2021, a county financial media center reprinted an article entitled "Vision|Coming! China Autumn Appreciation Map" originally published by People's Daily on its WeChat public account. The article uses the photographic work of "Red Leaf Valley in Qingzhou, Shandong". For this reason, Company T filed a lawsuit with the court against a county financial media center.
After trial, the court held that the financial media center of a certain county was a wholly-owned institution organized by the Propaganda Department of the county party committee, and its reprinting of the information contained in the works involved in the case in the People's Daily was to implement the spirit of the instructions of the Propaganda Department of the Guizhou Provincial Party Committee of the Communist Party of China on doing a good job in the propaganda of the "24 solar terms", and was of a public interest nature. In the information of the works involved in the case that has been published in the "People's Daily" reprinted by a county financial media center, the proportion of the pictures involved in the case is very small, and the articles published in the "People's Daily" use the works involved in the case only to better explain and show the public the scenery of the Chinese land when the "autumn is full of people", so that the public can have a more intuitive feeling of "arbors under the slight sun, and hidden autumn mountains in the distance". The purpose is not to pursue competition with the photographic works involved in the case in the market, nor will it affect the copyright owner to use the photographic works in question to obtain economic benefits normally. Therefore, the use of the picture work involved in the case by a county financial media center conforms to fair practice and does not exceed the scope of its legitimate needs for the purpose of news reporting, and in accordance with the provisions of Article 24 (2) of the "Copyright Law of the People's Republic of China" (hereinafter referred to as the "Copyright Law"), it meets the constitutive elements of appropriate citation, and constitutes a fair use of the work. As a result, the court dismissed Company T's claim, which is now in effect.
After the judgment of this case, a large number of similar cases were brought to the trial court. To this end, the court organized several news media that had been sued to hold a symposium on intellectual property rights, and used the case as a sample to fully explain the law and reason to the parties, and finally contributed to the efficient resolution of a series of similar cases.
Non-essential use of published work does not constitute fair use of a news report
There are different views in judicial practice on how to interpret the "inevitable reproduction or quotation" of the fair use of news reports as stipulated in Article 24(3) of the Copyright Law. Some people believe that the purpose of the fair use of news reports as provided for in Article 24(3) of the Copyright Law is to allow the reproduction of works seen or heard in the course of reporting events within the scope of legitimate needs when reporting news by means such as text, broadcasting, photography, etc. However, this restriction only makes sense for the news report to be published in itself. In the case of a news report on a published work, it is of course inevitable that the work will be reproduced or quoted in the news report.
The reprinting of a news report inevitably results in the use of the published work, the news report itself, and the work cited in the news report. However, there are many cases where published works are used in news reports that are not specific to published works. If the "unavoidable" of the constituent element of fair use of news reports stipulated in Article 24(3) of the Copyright Law is limited to the time dimension of "works seen or heard in the course of reporting events", news reports that are not specifically aimed at published works and news reports other than reprinted news reports will be excluded from the "fair use of news reports" as stipulated in the Copyright Law. However, this draconian restriction on fair use in news reports is akin to the position that "as long as you do not reproduce or quote published work, you will not be able to report at all", which would render the "fair use" rule almost worthless, since the vast majority of news can be reported in simple words. Therefore, the "inevitable reproduction or quotation" in the fair use of news reports should be understood to mean that the news cannot be reported in any other way without reproducing or quoting the work, but that it is impossible to immerse the public in the content of the news event without reproducing or quoting the work. The Guidelines for the Berne Convention for the Protection of Literary and Artistic Works also interpret "inevitably reproduced or quoted" to mean that "the purpose of news coverage of current events is to create a sense of public participation". However, even in such a broad understanding of the "unavoidable" in news reporting, the unnecessarily used use of published work in a news report does not constitute fair use in news reporting. The reason is that the legal basis and essence of the "fair use of news reports" restriction on copyright is the measurement of legal interests, that is, the copyright of individuals must be appropriately conceded to the public's right to know the news. However, in determining whether fair use of news reports applies, factual judgments must take precedence over value judgments. In other words, the judgment of compliance with the constituent elements of fair use in news reports must precede the judgment of the measurement of legal interests. It is not possible to weaken or even abandon the judgment of the conformity of "inevitable reproduction or quotation" of the constituent elements of fair use in news reports in order to protect the public's right to know news in news reports.
In the case adduced, even if the plaintiff's published work "Red Leaves Valley in Qingzhou, Shandong" was not used by the county's financial media center, even if the article on the 24 solar terms published by the People's Daily was not used, but the red leaves of Xiangshan Mountain taken by the reporter himself, the public could also be immersed in the content of the news event. It can be seen that the non-essential use of published works in news reports does not constitute fair use in news reports under Article 24(3) of the Copyright Law.
Statutory permission for non-essential use and newspaper reprinting
Non-essential use in news reports can be divided into two situations: direct use and reprint use, and reprint use can be divided into reprinting works that are legally used and works that are not used legally. Among them, the reprinting of a work lawfully refers to the situation where the original work is used by the reprinted newspaper or periodical in a manner that complies with the law, including both permission and fair use, and the situation of reprinting a work that is not lawfully used refers to the unauthorized or unfair use of the reprinted newspaper or periodical. In the case of reproduction and use in news reports, whether it is a work that is legally used or a work that is not lawfully used, does not necessarily constitute a statutory license to the original work. This is because the statutory permission for reprinting newspapers and periodicals provided for in the second paragraph of Article 35 of the Copyright Law is a statutory license for the newspaper and periodical works themselves, not for the published works used in the newspaper and periodical works. A statutory licence for a newspaper work does not necessarily entail a statutory licence for the published work of another person to be used in that press work. Specifically, the law provides for two types of copyright licenses, one is an exclusive license and the other is a non-exclusive license. The non-exclusive licensee obtains a right in the nature of a creditor's right and does not have a temporal nature, while the exclusive licensee obtains a right in rem and has a temporal nature. The above analysis is limited to a non-exclusive license to the work, for which the reproduced person has the property rights of the work, and therefore, the reproduced use constitutes a statutory license. If there is fair use of the published work of others in the reprinted work, according to the criterion of "limitation of limitations" of rights, the review of whether the reprinted work constitutes fair use should be on a case-by-case basis. In other words, the fair use of the published work of another person does not necessarily result in the reprinted use also constituting fair use. If there is a statutory permission to use the published work of another person in the reprinted work, because the statutory license is essentially a license issued to the actor to use the work on behalf of the copyright owner by law, and this permission is the same for all actors, so if there is a statutory license in the work reprinted and used in the news report, the reprinted use of the work should also establish a statutory license.
Even if the act of reprinting a newspaper or periodical work constitutes a statutory license within the meaning of the Copyright Law, whether the published work used without permission in the newspaper or periodical work also constitutes a statutory license in accordance with the provisions of Article 35, Paragraph 2 of the Copyright Law. Therefore, if the non-essential use of a published work in a news report falls into this case, the user may not be exempted from the licensing obligation of the unlicensed published work used in the newspaper work on the ground that the reproduction of the newspaper work itself constitutes a statutory license.
Non-essential use of published work constitutes appropriate citation
If the non-essential use of a published work in a news report is to illustrate a certain issue, a certain fact, or an objective situation or state in the content of the news report, and such use is not for the purpose of simply showing the used work to the public, such use meets the constitutive elements of appropriate quotation fair use as stipulated in Article 24(2) of the Copyright Law. Proper citation is one of the important circumstances of fair use of copyright. According to the literal interpretation of Article 24(2) of the Copyright Law, appropriate citation includes two situations: first, quotation for the purpose of introducing or commenting on a work, which is necessary for the creation of a review article or academic work, and second, citing a published work for the purpose of illustrating a certain issue. The former's quotation of a published work is directly related to the work and is for the purpose of evaluating or introducing the work itself, i.e., "transformative use". In "transformative use", the user forms a new work through the use of the original work, and the value and function of the original work to the new work is only "additional", and it is unreasonable to impose strict prior permission on the author of the new work, and it is even detrimental to the ultimate goal of the law to promote the prosperity of literature and art, which is an inevitable conclusion based on the interpretation of the normative purpose of the Copyright Law. In accordance with Article 10.1 of the Berne Convention, quotations are permitted in works that are lawfully made public, provided that such quotations are in accordance with fair practice and do not exceed the scope of what is reasonably necessary to achieve the purpose. It can be seen that proper citation is a restriction on copyright, and this restriction itself must be limited. "Limitation of limitations" describes the general requirements for limitations of rights. In other words, as long as the principle of proportionality is met, the acceptance of the appropriate quotation of the "restriction of limitations" should constitute a restriction on copyright. Since "transformative use" is directly related to the work under review, it is unrealistic and unreasonable to completely separate the new work from the original work resulting therefrom, so there should be no doubt that such a situation constitutes fair use. However, in the case of citing to illustrate a certain issue, since the citation is not directly related to the original work itself, and there is a difference between use and non-use, the user should be required to bear the necessary obligation of reasonable avoidance. The difference between the two is particularly evident in the determination of whether commercial use in news reports constitutes fair use. In the case of "transformative use", even commercial use can constitute fair use as long as the "transformative use" in the news report has a high degree of "convertibility" to the original work. However, in the case of citations for illustrative purposes, no commercial use can amount to fair use in any way. If there is a "transformative use" in a news report, it will generally constitute an appropriate reference to the translated work.
In the second case, "quoting for the sake of illustrating an issue" is common in news reports. As mentioned above, the legal basis for the "transformative use" in appropriate citation to constitute fair use lies in the fact that the "transformative use" forms the "attachment" of the new work to the used work, and it is unreasonable to forcibly separate it from the used work, and it is not in line with the normative purpose of the Copyright Law to promote the prosperity of literature and art. The second circumstance, "citation for the purpose of illustrating an issue", lacks such a legal basis, and the reason why the law also stipulates this situation as fair use is more based on the consideration and balance between private rights and public interests. Based on the above analysis, the application of the circumstance of "citing for the purpose of illustrating an issue" in appropriate citation should be subject to a more rigorous and substantive review than that of "transformative use". When interpreting the meaning of Article 24(2) of the Copyright Law, the substantive standard of fair use judgment should be introduced.
Article 8 of the Opinions on Several Issues Concerning the Giving Full Play to the Role of Intellectual Property Adjudication Functions in Promoting the Great Development and Prosperity of Socialist Culture and Promoting the Independent and Coordinated Development of the Economy (hereinafter referred to as the "Opinions") issued by the Supreme People's Court in 2011 stipulates four factors: "the nature and purpose of the use of the work, the nature of the work being used, the quantity and quality of the part being used, and the impact of the use of the work on the potential market or value of the work" to comprehensively determine whether the act constitutes fair use. Therefore, in the case of the use of published works in news reports, the following three aspects should be considered when determining whether it constitutes fair use:
The first is the public welfare purpose used in news reporting. In general, news reports have the public interest of protecting the public's right to know, which excludes the possibility that commercial use in news reports constitutes appropriate citation; Generally speaking, the use of published work to illustrate an issue in a news story is limited and a small proportion of the overall length of the news story. Third, the use of the work in the news report must not compete with the work in the market, and must not affect the normal use of the work, nor affect its normal use of the work. This requires that news reports use published work to illustrate an issue, with the aim of being limited to the description itself, rather than simply showing the reader the work being cited. The above-mentioned provisions of the Opinions are consistent with the provisions of Article 10(1) of the Berne Convention, and constitute the substantive standard for judging fair use. In view of this, the non-essential use of a published work in a news report constitutes an appropriate citation under Article 24(2) of the Copyright Law, as long as it is based on the public interest purpose of the news report, does not exceed the scope of the legitimate purpose of the news report, does not compete with the used work in the market, and does not affect the normal profit of the used work.
Since the substantive criterion is adopted for judging whether the non-essential use of a published work in a news report constitutes fair use, the interpretation of "quoted for the purpose of illustrating a certain issue" in the literal meaning of Article 24(2) of the Copyright Law does not need to be too rigid in terms and phrases. Even if the news report uses a published work not to illustrate an issue, but to illustrate an objective situation, event, landscape, etc., rather than as necessary, it should be interpreted as an appropriate quotation.
To sum up, after conducting a factual judgment and normative analysis of the non-essential use of published works in news reports, the court should also make a value judgment, that is, it should consider the restrictions and boundaries of the right to know about the public press on individual copyright rights in individual cases. Combined with the spirit of the judicial policy specified in the Supreme People's Court's opinions, excessive abuse of rights in the field of copyright protection should be prevented, so as to fully protect the people's cultural rights and interests.
Cover and table of contents of this issue
China Trial Magazine, Issue 24, 2023
China Trial News Semi-Monthly No. 334
Editor/Xu Chang