Legal consideration of Beijing Getty Images copyright protection series of litigation

Legal Thoughts on Beijing Getty Images copyright protection series of litigation

2010Years7Month23DayAfternoon, committee of Shenzhen Lawyers Association of intellectual property rights and high-tech professional legal seminar held, specifically related to Beijing Getty Images copyright protection series of lawsuit legal issues. Seminar in a warm atmosphere, nature, litigation subject qualification, burden of proof of litigation to members of Beijing Getty Images of actively speak. View the intersection between lack of wisdom, electro-optical flint flash. As a professional members, popular enlightenment.

    (Reference America Co. Ltd. (Getty Images)Www.gettyimages.com) is one of the world's largest picture distributors, its main business is: through the web site for the photographers worldwide picture authorized distribution; then the picture to license authorization to the terminal customers through the web site.
Getty Images (Beijing) Image Technology Co Ltd is American Getty Corporation and its wholly owned subsidiary Youli Yimei (Beijing) Image Technology Co. Ltd. in2005A Sino foreign joint venture enterprises set up in Beijing. Through America Getty company a vice president signed a "confirm authorization", Beijing Getty Images, hand agent USA Getty company image licensing distribution in China territory, but also in the Chinese land area to the pictures infringement of recourse. 

    At present, a considerable number of companies being sued for copyright infringement. According to incomplete statistics, only2006Years, China will have5000The company for more than"Tort"Is a company to court;2007Since the enterprise digital is increasing, throughout all kinds of state-owned, private enterprises, public institutions, non-governmental organizations and government departments. Getty Images (Beijing) Image Technology Co Ltd in Chinese around the court to"Plaintiff"Identity everywhere attack, mention"Infringement of copyright"Litigation; in addition to the court because of the individual place"The ownership of copyright of insufficient evidence"By the effective containment, in most of the local court case: most of each"Tort"The picture, the court to order the defendant to pay5000To10000Yuan compensation plaintiff lawyers fees, the so-called rights fees are supported. In addition Beijing Huagai creative company, also customary to sue for FLAC, so many companies had to each picture10000Million price to pay a license fee.

    For users including some lawyers argue that Beijing Getty Images, fishing procedure, set trap, legitimate extortion and other point of view, the author does not agree with. Enterprise is fishing, falling into the trap, is the enterprise's own just rights consciousness lack, also shows that the intellectual property lawyers we have wide world to sell intellectual property legal services to the community through intellectual property rights; profitability of a business model, amoral, but that the protection of intellectual property in China has reached a new the height of the canopy; Beijing creative series of lawsuits on many domestic enterprises to promote respect for intellectual property rights, the importance of intellectual property protection is of great significance, which is more than any publicity effect is more direct and obvious. As an intellectual property lawyer, to see the positive side of the case, not by non legal common vision to measure.

Of course, in a series of lawsuits Beijing Getty Images of the company, the people's Court on whether the company has the copyright? Copyright legal? Whether the authorization of the copyright owner? Whether to have standing to sue in his own name? The burden of proof is sufficient? To request the compensation amount is reasonable and other aspects of the review has lower standards too. Can say,If strictly on the basis of "copyright law" and the relevant international conventions, strictly implement the "civil law", in Beijing, Getty Images the prosecution way of proof and model, not a ghost of a chance. In most of the litigation!But the fact is the company most litigation case. This can not but arouse the attention of legal person.     

     First, America Getty, uncertainty about Beijing Huagai authorized right source.

Beijing Huagai company to USA Getty website pictures right from the America Getty company authorization. Washington state notary of the author access toBianchi WilsonNotary public content do for:"John J.LaphaMIII to2008Years6Month9My dear comes to the front, after Washington state notary appointed and sworn, confirm its purpose and use documents in accordance with the voluntary signed the document,I know it is my signature on the document." For the testimonyJohn J.LaphaMIII is the Getty's authorized representatives, identity documents, seals and the authenticity of the content the authenticity, legitimacy and so on have not done any evaluation. Notarization such court in the China obviously cannot as an authorized basis.

     America Getty company is just a picture distributors, shown in the website pictures do not of course have copyright. According to the America Copyright Act Article411The provisions of section, if the right people filed a lawsuit in American, must submit their works in the prosecution has been registered in the certificate of registration of copyright. Although according to China's "copyright" law:"If there is no evidence to the contrary, the citizens, legal persons or other organizations signed in the works for the author"But no matter, is America Getty or Beijing Huagai, mark the pictures spread the pictures on the website Webpage or picture of the own brand at the same time, the majority of label brand is another picture distributorsStone+,TaxiAnd so on, also has the very big one part picture the author (i.e. photographer), indicating that most of the exhibition works, USA Getty company is not the copyright owner. The trademark is the source of goods or service mark, not of works of signature, not to Webpage have picturesGettyImageThe trademark and the identified as the picture of the copyright owner. America Getty company cannot determine whether a Book of pictures in right, the authorization has become passive water without source.

    Second, Beijing Huagai fails to provide copyright is still in the period of protection of evidence.

    Anyone in the domestic filed a copyright lawsuit, the court will examine whether the copyright protection period. As the plaintiff must provide evidence of work completion time, otherwise, the people's court according to the rules of evidence shall not be accepted, rejected or accepted. But some litigation in Beijing canopy, but the green light to prove that the plaintiff did not provide relevant work completion time, this is not a lack of common plaintiff itself proof drop one's guard plus court oversight. "Berne Convention" article seventh paragraph eighth: in all cases, the term of protection requirements put forward by the national law; but unless otherwise stipulated by the law, the term shall not exceed the provisions of the country of origin of the work period. "Memorandum of understanding" between China and the United States on the protection of intellectual property rights article third paragraph seventh: China Berne Convention, all in the Berne Union members in the country of origin origin did not enter the public domain works, will be protected in Chinese. According to the priority principle that international treaties, if works in the country of origin has been the protection period, in the Chinese is not protected. So Beijing canopy must not only protect period to prove the claim works in China copyright law, should also prove that the works in the country of origin also did not exceed the period of protection.

Third, American Getty authorized Beijing canopy in its own name for the company sued infringement copyright infringement people show no basis in law.

In the "copyright law" provisions of article eighth of the exercise of copyright exception:"Copyright and copyright related right owners may authorize the organization for collective administration of copyright to exercise the copyright or copyright related rights. The organization for collective administration of copyright authorized, in its own name for the claim of copyright and copyright related rights, and as a party to the copyright or litigation, arbitration and copyright related rights". Beijing Getty not copyright collective management organization, even assuming that the USA Getty has books on related work right, USA Getty company can authorize Beijing Getty Images with attorney participate in litigation but not to initiate an action in its own name. Beijing Huagai in its own name, agent America Getty sued, so that the related series of copyright disputes case no legal basis for the right to change into the domestic copyright lawsuit. Right of action is not transferable, but here one should not occur through the main changes to avoid under the jurisdiction of the obvious flaws.

In addition, the dual attributes of copyright should be with the property rights and personal rights, and therefore should be the copyright owner to exercise in its own name. Beijing Getty claims including the apology to the personal rights of claim, is the exercise of all the rights of copyright person rather than a separate exercise their copyright related rights. Beijing Huagai in his own name to claim is clearly not appropriate.

Fourth, Beijing canopy on the infringement of the defendant evidence not fully.

   Beijing Huagai company in many of the litigation in general is to prove the infringement by acquiring corporate brochure in the exhibition way, no on-site notary evidence, it is difficult to prove that the evidence of the defendant. Many enterprises in order to not only take part in the exhibition the fact can be dismissed the plaintiff claims of infringement, but the court seldom pay attention to the defense of the accused. This shows that Beijing canopy in the prosecution of preparation phase is not sufficient, and the court review of the evidence for a standard company reduced.

In addition, Beijing Huagai price appeal to disrupt the market too.

In USA Getty company web site, download the pictures from5Dollars to hundreds of dollars, according to the different file sizes. While the amount of compensation Chinese court in RMB million, not only against China conditions, beyond the number of times USA market price, its rationality is questionable. Beijing Huagai through litigation, succeeded in getting close to the aerial photographs of the sky high compensation for many ordinary. For example, on a woman lawyer angrily said: her client using an ordinary handshake photo, was the other prosecution1Million yuan compensation. Understood according to the author, the author buy pictures from Beijing Huagai company used in the publication, but the price150Yuan, and people's military medical press using Beijing Huagai a picture was sentenced to pay compensation for the losses1Million yuan (including5500Yuan notarization and lawyer fees). In this sense, we dislike bad practices Beijing Huagai companies use litigation gain excess profit is not unreasonable. In this regard, the author thinks that the court should review only to Beijing Huagai proof and individual case a copyright contract transaction price as compensation approach based on whether it was malicious use of a company? The author thinks that the people's court in the case, should also refer to the corresponding market price or intellectual property assessment agencies that the fair market price. If Beijing Getty company and an outsider a copyright use contract price and the market price gap is too large, it should not be accepted the burden of proof according to the market price decision.

"Price law" provisions of article thirteenth:" Operators to sell, purchase of goods and services, shall be in accordance with the provisions of the competent pricing department of the government's price tag, marked the commodity name, origin, specifications, grading, unit pricing, price or service items, charging standards."Beijing Huagai does not indicate its service to the market price on its website, also suspected of illegal price.

      In short, the litigation rights and earnings management mode no ground for blame, but in the proceedings to observe the procedure rules. Especially in the people's court needs the law, should be based on the unified balance scale trial, to the impartiality and authority of judicial.