Per reporter: Ye Xiaodan
Curtains are a must-have for home, but the seemingly inconspicuous curtain pattern has become a hot spot for copyright protection in Zhejiang. On the China Judgment Documents Network, the keyword "curtain + flower type + copyright" was searched, and from the perspective of geographical distribution, there were more than 200 cases in Zhejiang Province. In 2020, there were a total of 21 litigation cases, of which 20 were related to Zhejiang, most of which involved light textile city merchants located in Keqiao.
Intellectual property rights mainly include patent rights, copyrights and trademark rights. In recent years, the awareness of protection in the field of intellectual property rights has increased, and the crackdown on infringement has gradually increased. The curtain pattern belongs to the fine art works and also belongs to the category of copyright.
Why is it not uncommon to defend the rights of curtain patterns? Why did the merchant suddenly receive a lawyer's letter from the defendant for infringement? Why did the defendant's merchant feel wronged? Is it fishing for rights and excessive litigation? Is there industrialization behind copyright protection?
The curtain pattern that is not noticed by people is a microcosm of the protection of the copyright owner's rights, and the "rights protection" behind it presents a complex, multi-dimensional and jagged boundary in the conflict of reality.
Merchant: Entered a pattern, the defendant infringed
Zhang Tao, who opened a shop on the first floor of the curtain fabric market in China Textile City (Beilian), ate a "lawsuit".
Speaking of this matter, Zhang Tao still had resentment in his heart, "Just like 'fishing', he came to the store to buy a few meters of cloth, and then it didn't take long to receive their lawyer's letter, suing us for infringement." ”
Zhang Tao's curtain wholesale store originally sold more plain curtains, but the store business is not very good, last year he bought a flowered curtain from the purchase manufacturer to hang in the store, and as a result, he received a lawyer's letter after not hanging for a few days.
"I went to communicate with the factory and said that the curtain pattern they produced was infringing, and the factory said, 'No, other wholesalers are selling, no problem', and the truth is true, like the pattern I accused, there are other merchants in the market that are selling." The other party claimed 10,000 yuan from him, and he was willing to lose money and could be private. Zhang Tao said that this matter is still being handled. In the negotiations, he once said that he was not a manufacturer of curtain patterns, but only distributed wholesale, let the plaintiff sue the manufacturer, but the other party said that "the factory is more troublesome, wholesale sales is also infringement."
In textile city, merchants used to call the patterns that had applied for copyright "package plates". The reporter visited more than ten curtain wholesale merchants in the wholesale market and learned that the number of curtain patterns circulating in the market every year is very large, and the frequency of change is high and the popular time is short. For merchants, it is difficult to predict in advance what flower types are good or bad to sell. Therefore, it is generally necessary to put the curtains with flowers on the market for sale, test the water for a period of time, and if the sales are good, then apply for a package version.
Merchant Li Wei told reporters that the package version means that if this pattern is successfully registered by himself, then in the wholesale sales link, only his store can do the wholesale of this flower type. If other families have a pattern for sale, they will generally inform these merchants first, this pattern is packaged, please withdraw them and do not sell it again, if you say that you still continue to sell, you will consider taking the legal route.
Li Wei stressed, "In fact, there are very few merchants in the market who 'engage' in the market, but now there are a group of people who specialize in fancy infringement litigation, and the merchants are completely unaware of it, and the indictment has already arrived at your home."
Keqiao Textile City Wholesale Market Image source: Per the reporter Ye Xiaodan photo
Wang Lin, another merchant of wholesale curtains, when mentioning the phenomenon of flower type infringement, lamented that he had not encountered it for the time being, but he really hoped not to meet this group of people. "It feels like someone is making this money specifically to see what patterns are being sold on the market, they secretly apply for packages, and other merchants in the market sell wholesale as usual without their knowledge, and after they apply for copyright, they go to these merchants for sale to buy a few meters of cloth, take the sales records as evidence, and then sue."
However, during the visit, the reporter learned that the merchants in the wholesale market of Textile City also took legal channels to protect their rights and interests because their own packaged curtain patterns were infringed.
In 2020, Du Meng found that the bag pattern produced by his factory and sold in the store was also sold by other merchants in the market, so he went to the other party's store to buy a few meters of cloth, as evidence, Du Meng entrusted a lawyer to go through the litigation procedure. However, Du Meng introduced that so far, the lawsuit has not officially started.
21 judgment cases: the plaintiff wins more than loses
If quantitative analysis is done in 2020 and the "curtains, patterns, copyrights" are searched on the China Judgment Documents Network, there are a total of 22 judgment documents, of which 20 involve Zhejiang Province, and most of the defendants are merchants in Shaoxing Keqiao Textile City.
The reporter also learned during the visit that for the vast majority of individual merchants, there is no human and material resources to deal with the litigation process, so the final judicial procedure is still a minority, and the vast majority ends in a private settlement between the two parties.
In response to the copyright of textile fabric patterns, on June 24, Ma Xiaofeng, a representative of securities affairs of Textile City (600790, SH), told reporters that this has always been a difficult point in the market, but in recent years, the Zhejiang provincial government has increased the protection of intellectual property rights. In the wholesale market, industry, commerce and justice are stationed to help market merchants coordinate such disputes. In the past two years, the copyright disputes between merchants and merchants have eased up a bit more than before. "But it is more difficult to say that people outside the market have applied for copyrights and then defended their rights in the market."
The above judgment involved a total of 22 copyright works, and there were also cases in which the same plaintiff sued a number of infringing subjects. One of the plaintiffs filed three lawsuits and two of the plaintiffs sued two.
In addition, there is a situation where the subject of the defendant has been sued by multiple plaintiffs at the same time. According to statistics, there are 17 defendants involved in one infringement case and 2 defendants involved in 2 infringement cases.
Judging from the judgment results, 19 of the 21 cases were won by the plaintiff and 2 were lost. Overall, there is a situation of more wins and less losses, and the amount of compensation is in the range of 10,000-90,000 yuan.
Behind these statistics, the confrontation between rights defenders and merchants highlights the contradictions in the current process of copyright protection of curtain patterns.
For example, one of the judgments disclosed that after the plaintiff Shen X's independently created art works applied for copyright and put them into production and operation, it was found that the defendant Lu X sold curtain cloth printed with the pattern through Lu X's registered WeChat without permission. However, the defendant Lu argued that the plaintiff's existing evidence was not enough to prove that the plaintiff of the flower type involved in the case enjoyed copyright, because the flower type elements involved in the case were simple and had long been popular in the market. At the same time, Lu provided relevant evidence.
The court's judgment shows that although the evidence provided by the defendant Lu Mou in the early popular market of the flower type involved in the case is similar to the plaintiff's art works, it cannot directly negate the creator's creative achievements just because the basic elements are consistent, and the court finally ruled that the plaintiff won the lawsuit.
However, in another case, the circumstances were quite similar to those mentioned above, and the defendant Pan argued that the third-party website had displayed the art works involved in the case as shared materials as early as the plaintiff's registration date.
In the end, the court ruled that the work registration certificate could indeed be used as preliminary evidence to determine the copyright owner. However, the registration of works is voluntary, and the copyright registration authorities only do formal examination. In practice, it is not uncommon for other people's works or works of unknown authors to be claimed as their own works and registered, so the work registration certificate is not a certificate of confirmation of rights, but only evidence of time. If, prior to the registration of the work, the work in question had been used by others in the public domain, the registrant of the work could not be identified as the copyright holder solely on the basis of the subsequent certificate of registration of the work. This is the case in this case. The art works in the shared materials provided by Pan on the third-party website were uploaded much earlier than the registration time of the plaintiff's works. In the end, the court ruled that the plaintiff lost the case.
Suing the dealer and not the manufacturer, what is the complexity of the dispute?
The two cases that turned out to be opposite also let us see the complexity behind the protection of the curtain pattern. The three main areas of intellectual property: patents, trademarks, copyrights, patents and trademarks all require examination mechanisms, while copyrights are different in that they have a voluntary registration system.
In the process of communication between the Textile City and the merchants, in the face of the frequent infringement of curtain patterns in recent years, the merchants have more doubts and complaints, "The merchants are dealers, only the sales circulation link, why does the plaintiff not sue the manufacturer of the production link?" The patterns are what the manufacturer produces, and the merchants buy what the goods. ”
"In the same pattern, some copyright owners sue several merchants, and they entrust several law firms centrally, is there a situation of industrialization of rights protection?" If a merchant compensates 10,000 or 20,000 yuan and finds 5-10 infringing merchants, may the plaintiff's income from rights protection be more than the merchant's annual income? ”
"If the wholesale merchants who have their own factories develop the patterns, first look at the quality of the market and then decide on the package version, but before they package the version, someone has already preemptively applied, is this not someone else taking the merchant's flower type to sue the merchant for infringement?"
On the afternoon of June 11, the staff of the office of the Shaoxing Keqiao District Market Supervision and Administration Bureau told reporters that the current curtain pattern in Keqiao District is the "Trial Measures for voluntary registration of works (1994)", according to the 1994 method, the implementation of the provincial registration model, the data between provinces is not connected, the standards between each province are not the same, so in the past there were data barriers and data islands in copyright works between provinces.
In addition, in the current situation, such a situation will arise: that is, if the registration standards of Province A are more stringent, some copyright works that are similar or do not meet the standards of Province A will not be registered, but if the standards of Province B or Province C are looser than those of Province A, the applicant may not register his works in Province A, but can be registered in other provinces.
The above-mentioned staff said that through the successful registration in different places, they came back to Zhejiang Province to protect their rights, and many of the cases they learned about were such cases. In addition, there are still some phenomena of excessive rights protection, malicious rights protection, and even no lack of industrialization of rights protection.
"For cases where infringement is indeed committed, we encourage both parties to take administrative mediation, or judicial litigation, which is okay, but according to our statistics, the vast majority of copyright owners come directly through lawyers, and very few through administrative and judicial channels."
According to Article 54 of the Copyright Law, copyright disputes may be mediated or may apply to an arbitration institution for arbitration in accordance with the written arbitration agreement reached by the parties or the arbitration clause in the copyright contract. If the parties do not have a written agreement or have not concluded an arbitration clause in the copyright contract, they may directly file a lawsuit with the people's court.
"Fishing rights protection", can it be thick?
In response to the problem of suing dealers but not manufacturers, Wu Jingqian, a partner lawyer at Beijing Jiayuan Law Firm, told the "Daily Economic News" reporter that when rights holders protect their rights, in order to combat plagiarism and piracy from the source and achieve better rights protection effects, they actually hope to crack down on infringing manufacturers. However, manufacturers engaged in infringement are often very vigilant and very hidden, and it is difficult for the right holder to learn the clues of the infringing manufacturer, and it is even difficult to find a qualified defendant through ordinary civil litigation. In the past brand rights protection practice, some well-known brands will spend a lot of manpower and material resources to collect clues, trace the root cause to the infringing manufacturer, and then protect their rights through civil, administrative, criminal and other channels. However, some rights holders who are not able to be arrested may not be able to obtain clues from infringing manufacturers through effective means.
Why are the sellers sued? Wu Jingqian said that based on past practice, the right holder generally has two starting points: one is to stop the infringement as soon as possible at the market level by suing the seller, and to obtain a certain amount of infringement compensation to make up for the loss; the other is to hope that by suing the seller, it can learn the manufacturer's information from the seller's evidence and add the manufacturer as the defendant, stop the infringement from the root and achieve its rights protection purpose.
Zhongwang Fabric (605003, SH), a home textile company that has recently landed in A-shares, disclosed in its 2020 annual report that the company has 1789 sets of fabric patterns and 26859 styles through continuous research and development throughout the year. Zhongwang Fabric mentioned in its annual report that "design is often regarded as the soul of fabric products, which directly determines the quality and market positioning of a company's products." In 2019-2020, design expenses accounted for 40.64% and 42.74% of R&D expenditures.".
Of course, Mr. Gao Fei, a partner at Shanghai Wenfeiyong Law Firm, said that at present, there are also some subjects in the market who maliciously preemptively register copyrights, and for patterns that are not designed by themselves to register with the Copyright Office, and then claim that they are malicious rights protection for copyright owners, there are indeed problems of fishing rights protection and malicious rights protection in such cases.
Referring to the situation of fishing rights protection and the industrialization of rights protection, Gao Fei said that the more typical cases, such as some picture companies making websites, not doing rights prompts, intentionally letting others reprint, and then demanding compensation from the other party through litigation, this is already a business model. Its operation path is to set up an intellectual property company, buy out the copyright or trademark rights for a certain period of time, and then collect and collect evidence of the infringement, and then file a lawsuit with the court to benefit from rights protection.
Wu Jingqian said that the issue of the industrialization of rights protection may still be a matter of opinion. On the one hand, from the perspective of judicial practice, as long as the rights defender uses its legitimate rights to legitimately protect its rights, it can eventually obtain the support of the court. Even if the so-called "industrialization" of rights protection cases in specific fields is formed due to the increase in the awareness of rights protection of rights holders, there is no social harm. Unless it is malicious use of institutional loopholes or rubbing the edges, malicious and large numbers of rights protection without or forging the relevant rights base will form a bad atmosphere, but it will be stopped by the law and will eventually die. On the other hand, it is not excluded that the seller can also be forced to improve its awareness of copyright protection. After years of vigorous protection of the brand, the seller's awareness of brand (trademark rights) protection has been significantly strengthened, but the awareness of the protection of curtain patterns (copyrights) may not be sufficient. Therefore, the current increasing incidence of curtain pattern rights protection cases does not rule out that it will also follow the path of brand rights protection.
In addition, from the standpoint of the original copyright owner, curtain patterns, especially hot-selling curtain patterns, development, design, promotion, all need to spend time, money and labor costs, once pirated, especially in the market circulation, low-cost sales, will have an impact on the copyright owner's original curtain sales, to the copyright owner and its dealers have caused a lot of losses. It is true that some sellers do not have the intention to sell pirated patterns when purchasing goods from manufacturers, but they will also cause losses to copyright owners. Therefore, if the seller can improve the awareness of protection, in the procurement process, try to sign a contract order with the manufacturer as much as possible, and require the copyright certificate of the curtain pattern, etc., it will make the entire market more standardized, and once involved in the lawsuit, it can also lay the foundation for the seller's legal source defense. Of course, this will take time.
"The seller may also be exempted from liability by law"
Professor Yao Huanqing, deputy director of the Civil and Commercial Legal Science Research Center of Chinese Min University, deputy secretary general and executive director of the China Intellectual Property Law Research Association, conducted an in-depth analysis of the copyright dispute of "curtain flower type" in an interview with the Daily Economic News on June 24.
"From the perspective of copyright, in principle, it is not authorized to use. If it is not authorized, then this is not your thing and may constitute infringement. Of course, there are two aspects of the problem that need to be distinguished, as far as the producer is concerned, but where the curtains, bed sheets, etc. produced use a certain pattern, as long as it is not designed by the producer himself, it may involve the problem of infringement, which is the basic principle, no authorization and no use. In addition, in the case of the seller, it is often the case that the product is purchased from the producer, who does not know whether the producer owns the copyright or is authorized. In this case, according to Article 59 of the Copyright Law (Appendix to remarks), if the seller can prove the legal origin of the product, he does not actually need to bear legal liability, so from this point of view, the seller can actually exempt himself from liability through Article 59. ”
As for the controversy over "fishing for evidence", Professor Yao Huanqing believes that the copyright owner's act of going to the store to buy floral cloth first and then sending a lawyer's letter is a normal move of fixed evidence, "but I can understand why the merchant will reflect that it is a fishing evidence collection, because the merchant is very likely to be both a producer and a seller." It is likely that there is a situation where the copyright owner takes the pattern he applied for and asks the merchant to process it according to the sample, and the merchant tells you that you can produce it and produce it according to the sample. At this time, it will fall into the trap of collecting evidence, in fact, the merchant may not produce this pattern, but because the copyright owner proposes to produce according to the sample. ”
For the merchant, the simplest and most effective way is that the customer takes the pattern to ask the merchant to customize, the merchant should leave the pattern, in this case, once there is the above trap evidence, the manufacturer can defend. Otherwise, if the merchant does not leave the copyright owner's "trap evidence" evidence, the law may judge that the merchant originally produced and sold the infringing product, rather than the other party traps the evidence.
In addition, with regard to the situation that the copyright owner does not accept mediation, Professor Yao Huanqing pointed out that there are two main situations in mediation, one is to impersonate the copyright owner and not the real copyright owner, which is a very typical case of malicious extortion. The other is that copyright owners use litigation to protect their rights as a business model to make profits, and a large number of infringing merchants sue and make high claims against them. The copyright owner has the right to choose the solution, mediation is not a necessary procedure, but if the copyright owner comes to 'extort' in a long-term and malicious manner, the relevant market management party needs to have one case after another of data accumulation, file, and relevant records, and it is possible to make special accusations against the "malicious litigation" party afterwards, otherwise there is no data statistics, the malicious litigation party is always the first time, and things become difficult to handle.
At the same time, the law also provides a special solution mechanism for malicious litigation and other issues, but the right holder has the right to claim the right, otherwise, in the end, there may be infringement. In the field of curtain sheets, design comes first. The concept of protecting originality and design must be implemented, and the protection of rights holders should undoubtedly be implemented.
Based on this, Professor Yao Huanqing said that both the market manager and the supervision and management department should do a good job in the work of intellectual property databases. Only long-term accumulation can expel malicious litigants.
The gulf of history and the bridging of science and technology
Zhang Tao, who purchased a flower curtain once and was accused of infringement, said that he would never dare to go to the factory to enter the flower curtain again. He said that he did not know where to check, the pattern was someone else's package version or the factory version, could not determine the copyright, he was afraid and "stepped on the pit".
The staff of the office of the Shaoxing Keqiao District Market Supervision and Administration Bureau said that the data barrier problem and the manual comparison of the pattern under the provincial registration model are indeed the weak links in the current judicial and administrative protection. However, Keqiao is trying to solve these pain points through the power of technology and technology.
In 2020, Keqiao developed the country's first "China Textile Fabric Pattern Copyright Data Center and AI Comparison System", established a "one map and one ID" digital ID card, and "household registration management".
In the first half of this year, as a key application project of the global digital court reform in Zhejiang Province, the "Copyright AI Intelligent Trial" system developed by the Keqiao District People's Court was officially launched. When trying a case of pattern copyright dispute, the court can trace the copyright source through the AI comparison system. According to the above-mentioned staff, this year Keqiao is making a pattern of textile fabrics "digital intelligence", hoping to form a one-click protection of copyrights such as flower types.
In addition, at present, the copyright registration of enterprises and individual industrial and commercial households also enjoys financial subsidies. According to the above-mentioned staff, "The registration of enterprises and individual industrial and commercial households in Keqiao District no longer requires individuals or enterprises to bear the costs. As long as they submit an application from the market supervision and administration bureau and issue a consent, after the quarterly aggregation, the money will be paid by the government. ”
In terms of breaking down data barriers and data islands, as early as 2019, the "Four Provinces Textile Pattern Copyright Protection Alliance Collaboration Mechanism" jointly initiated by the copyright management departments of Zhejiang, Shandong, Jiangsu and Guangdong provinces was officially signed, and the copyright protection of textile patterns in the four provinces entered the stage of comprehensive sharing and co-protection.
It should be pointed out that there are various complexities in the disputes from the point of entry to the specific and micro, but from the perspective of the general trend, the current copyright applications for local curtain patterns in Keqiao are continuing to grow. According to the data provided by the Keqiao District Market Supervision and Administration Bureau, from January to May this year, Keqiao District accepted a total of 3394 applications and issued more than 2500 cases. From January to May 2021, the number of registration applications increased by 106.07% year-on-year, and the number of approved registrations increased by 148.67% year-on-year.
Professor Yao Huanqing said that in view of the current copyright disputes over textile fabric patterns, the most critical thing is to strengthen the legal education of merchants, improve the awareness of copyright protection, the cost of applying for copyright is very low, once the defendant infringes, the cost of merchants is very high; secondly, the relevant wholesale market management parties should sort out the database on the color and other aspects, help merchants to do pattern search and other work, the database is continuously enriched, and can also provide richer data support for pattern copyright AI comparison.
Remarks: 1. Article 59 of the Copyright Law Where the publisher or producer of a reproduction cannot prove that its publication or production is legally authorized, and the distributor of the reproduction or the lessor of the reproduction of the audio-visual work, computer software, audio or video recording cannot prove that the reproduction it has a legal source, it shall bear legal responsibility.
In the course of litigation proceedings, where the alleged infringer claims that it does not bear liability for infringement, it shall provide evidence to prove that it has obtained the permission of the right holder, or that it may be used without the permission of the right holder as provided for in this Law.
2. Textile City merchants Zhang Tao, Li Wei and Wang Lin are pseudonyms
Reporter's Note 丨 The problem begins with consciousness
Copyright disputes over curtain patterns are actually a very subdivided category in the field of copyright. However, during the reporter's on-site visit, under the surface of rights protection and infringement, he saw the complexity of the conflict.
In terms of the general trend, with the rise and going out of Chinese brands, the importance of intellectual property protection has become more and more prominent. In the course of the interview, we found that the established thinking of the past is likely to become a "pit" for merchants in copyright disputes. "I didn't expect it" and "didn't realize it" often cost a lot of money. Therefore, how to improve the public's awareness of the protection of intellectual property rights from the perspective of ideas and concepts is a very crucial step.
With regard to the current controversy over malicious litigation and the industrialization of rights protection in the field of intellectual property rights protection, it needs to be clarified that if the malicious litigation party claims to have relevant copyright interests, but in fact does not own it, we believe that this is "malicious", but for the defendant infringer, if the source of the product involved in the case cannot be explained, he does not have a clear ownership of rights, and there is also "malice". From a moral point of view, deliberate extortion and profit through litigation should be condemned. From a legal point of view, how to safeguard our intellectual property rights in a more rational way and not give speculators an opportunity is the next way we have to go.
Reporter: Ye Xiaodan
Editor: Chen Junjie
Vision: Zou Li
Video: Yi Zhang
Typesetting: Chen Junjie Mou Xuan
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