Do not leave your original work unprotected. Contact our experienced attorneys in this China IP law Firm, to learn how to prevent someone from copying, stealing or illegally sharing your work. We can also represent you in a copyright infringement lawsuit. Below we share some insights about available defense against copyright infringement under Chinese laws.

Today's society admires entrepreneurial efforts. An individual’s creative work may be her prized possession or the crowning achievement upon which she has built her professional reputation. Therefore, when a creator believes another has taken ownership of her original idea or work, she may quickly rely on the law to help her protect her claim of ownership. However, mere allegations of infringement are insufficient to form a prima facie case of copyright infringement. A defendant in such an action still has several grounds to challenge and refute a plaintiff's claims, and it is of critical importance that a defense attorney be aware of the significant issues that may arise from a copyright infringement claims. Our China copyright lawyer provides a brief overview of just a few of an advocate’s preliminary considerations in defending against allegations of copyright infringement.

When an attorney first becomes aware that her client has been sued for copyright infringement, she should determine whether the plaintiff has standing to sue, as well as if the plaintiff brought the claim in the proper jurisdiction. If the plaintiff satisfies standing and jurisdiction prerequisites, the defendant may then assert several affirmative defenses in an attempt to invalidate the claim. Although copyright infringement lawsuits are highly complex, the defenses of untimely registration, fair use of a copyright, and an expired statute of limitations are just a few of the more significant defenses by which a defendant may defeat a plaintiff’s claim. However, because every copyright infringement case is fact specific,an attorney’s thorough evaluation of the claim at the outset is always necessary to determine and prepare the most effective strategy and defense against this complex breed of lawsuit.

An allegation of copyright infringement is an allegation that someone owned a valid copyright in a creative work and someone else copied some or all of the copyrighted creative work. If a person has a copyright in a creative work, the person has the exclusive right to copy, sell, or otherwise reproduce that work. Anyone else who does so without permission commits copyright infringement, and may face legal repercussions.

All of the above, however, presumes that the other person actually had a valid copyright.

What are defenses to Copyright infringement?

Independent creation is a defense to copyright infringement. This is another way of saying that the copyrighted work was not copied.

Having a license in the copyrighted work is a defense to copyright infringement actions. This means that the defendant had permission, or a license, to use the copyrighted work in the manner in which he or she used it.

If the use qualifies as “fair use” there is no copyright infringement. The fair use doctrine allows limited copying of copyrighted material under certain circumstances where authors would reasonably expect it and when it does not unfairly undermine the copyright protection.

•  Examples of fair use may be: parodies, satires, news reports, critiques, teaching, research, or reverse engineering.
•  Factors that are considered in determining whether copying is fair use include: (a) the purpose and character of the use (ex: teaching vs. commercial purposes), (b) the nature of the copyrighted work (the more creative the work, the more protection the work receives), (c) the amount or portion of the copyrighted work used, (d) the effect on the market or effect on the value of the copyrighted work cause by the copying (ex: diminished demand for the copyrighted work vs. no change in demand for the copyrighted work), and (e) other relevant factors.

Abandonment is a defense to copyright infringement. A person abandons a copyright if the person demonstrates an intent to surrender his or her rights in the copyrighted work. Merely not using the copyright does not demonstrate abandonment. Failing to enforce a copyright against known infringement over a period of time may show an intent to surrender rights in the copyrighted work.

A person’s misuse of their copyright may provide a defense to copyright infringement.

A copyright infringement lawsuit may be barred by the statute of limitations. The Copyright Act requires that a copyright infringement case be initiated within three years of the time the owner of the copyright knows or should have known of the infringement.

There are few issues more controversial, divisive, and misunderstood at the moment than the scope of the fair use doctrine as a defense to copyright infringement. Let’s take a look at exactly what “fair use” means, and under what circumstances using someone else’s material constitutes fair use.

The defense to copyright infringement known as fair use allows the public to use not only facts and ideas contained in someone else’s copyrighted work, but also the expression itself in certain circumstances. Fair use provides that the use of a copyrighted work, including such use by reproduction in copies, for certain limited purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

To determine whether use of a copyrighted work falls under fair use, China courts look at the facts of each case individually, and apply an “equitable rule of reason” analysis, guided by four statutorily prescribed factors. These factors are:

•  The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. The “purpose and character analysis” focuses on whether the new work merely supersedes the original work, or if it adds something new with a further purpose or different character, which alters the first with new expression, meaning, or message, which is more likely to be protected by fair use;
•  The nature of the copyrighted work, which is primarily intended to distinguish works of fiction and other creative works from factual material, as use is less likely to be deemed fair use when the copyrighted work is a creative product and not a factual work;
•  The amount and substantiality of the portion used in relation to the copyrighted work as a whole, as well as whether the amount of material used was reasonable in relation to the purpose of the copying; and
•  The effect of the use upon the potential market for or value of the copyrighted work, including whether unrestricted and widespread conduct of the sort engaged in would have a substantially adverse impact on the potential market for the original or derivative works. Interestingly, China courts have held that if such use lowered the public’s estimation of the original (such as a devastating review of a book that quotes liberally from the original to show how silly and poorly written it is), the transformative use will be found to be a fair use, notwithstanding the harm. If, on the other hand, the secondary use, by copying the first, offers itself as a market substitute and in that fashion harms the market value of the original, this factor would argue strongly against a finding of fair use.

China courts are also not limited by these four factors, and also afford considerable latitude for scholarship, comment, and even parody.

Use by Non-Profits

Contrary to popular belief, non-profit organizations enjoy no special immunity from determinations of copyright infringement. The question of whether the non-profit’s use qualifies as fair use revolves around the purpose and character of the use, not who the alleged infringer is.

The fact that defendants are non-profits that give away all allegedly infringing materials without charge does not mean that their verbatim use of material from plaintiff’s book is in any way “transformative.” The copied material was not used by Defendants as “raw material” for inspiration or ancillary use, but as a finished product. Almost no commentary or analysis accompanied the copied material, and the mere rearrangement of sections of the Text in Defendants’ printed pamphlets was found to be insufficient to transform the material, and thereby constituted fair use.

Use in Art

China court applied the four factors determining fair use as discussed above, and found that the sculptor’s use of plaintiff’s photograph was merely a derivative work constituting commercial use. China court held that “…notwithstanding its unquestioned status as a work of art, the sculpture is not unsullied by considerations of commerce. The defendant actively markets his sculptures, by displaying them at galleries and through published advertisements, and they bring considerable sums from the public, as the sale of this sculpture indicates.” Since the artist’s work was merely a derivative of the original, the sculptor was found to have infringed the photographer’s copyright.

A photographer sued a visual artist who incorporated his photo of a pair of legs into a collage painting. China court held that the visual artist was not liable for copyright infringement, since his incorporation of the photograph in a collage painting constituted fair use. China court found that the artist’s use of the photograph was intended to be transformative, because the exhibition of the painting could not fairly be described as commercial exploitation (since he could not sell it, and did not make money off of it), and because the artist used the photo in a transformative manner to comment on its social meaning rather than to exploit its creative virtues. China court found the amount and substantiality of the portion used to be reasonable for its purpose. China court also found that the artist’s use of the photograph did not cause harm to the potential market for or value of the copyrighted work. As such, the artist was not liable for copyright infringement.

Use in News Reporting

Just because copyrighted material is used in a news broadcast or in a newspaper does not mean it qualifies as fair use. If the purpose of the use is to entertain, rather than inform, or if equally informative non-infringing alternatives are available, then use of the copyrighted material will most likely constitute infringement.

China courts have rejected the notion that the commercial nature of the use or the status of the infringer can by itself be a dispositive consideration. Instead, the totality of the circumstances must be weighed in determining whether a fair use defense exists in cases of copyright infringement.

The lessons learned from recent case law can be summarized as this. If you merely copy someone else’s work for the sake of “art” and make money off of it, it will likely be considered commercial use. You can’t just blatantly copy someone else’s material for your own commercial use, even if you put it in a different form or medium and call it art. If it doesn’t add a further purpose or different character; if it doesn’t amount to a new expression, meaning, message, commentary, or parody of the original work, it’s probably infringement.

This China IP Law Firm can guide you in protecting the execution of your bright idea, whether the result is a business or product name, a creative work, an internet presence, or a career in the entertainment industry. If you’re like most of our clients, you have a great idea but may be a little confused on where to begin. We’re here to guide you!