primary facts
Plaintiff: Youku Network Technology (Beijing) Co., Ltd. (hereinafter referred to as Youku)
Defendant: Shenzhen Corn Technology Co., Ltd. (hereinafter referred to as the Company).
The TV series "to the sky kingdom" (hereinafter referred to as the drama series involved) is a popular film and television work of 20 17. Once the drama series involved in the case was broadcast, it triggered a nationwide drama watching craze and became a hot topic of long-term discussion on the Internet. In this case, the plaintiff Youku is the right holder of the information network communication right of the drama involved. Youku decided that the defendant Xiaomi Company provided a continuous atlas of the dramas involved in the drama column on the "photo agency" platform it developed and operated, which basically covered the main pictures and all the plots of the dramas involved, which constituted an infringement of Youku Company's information network communication right, so it filed a lawsuit and requested the court to order Xiaomi Company to compensate economic losses and reasonable expenses of 500,000 yuan.
It is reported that the defendant Xiaomi Company has developed and operated an "illustrated movie" website and an APP, the homepage of which clearly states "Enjoy a good movie in ten minutes", and the website provides a photo collection of the first episode of to the sky kingdom. The photo album * * * contains 382 pictures, all taken from the drama series involved. The picture content covers the main picture of the first episode of the drama involved, and the following text is added separately by the album producer.
Article 22 of China's Copyright Law stipulates twelve situations of fair use, including appropriately quoting other people's published works in order to introduce and comment on a certain work or explain a certain problem. Article 21 of the Regulations on the Implementation of the Copyright Law stipulates that "in accordance with the relevant provisions of the Copyright Law, the use of a published work without the permission of the copyright owner shall not affect the normal use of the work, nor shall it reasonably harm the legitimate interests of the copyright owner." The above provisions stipulate the constituent elements of fair use.
Specific to this case, the court analyzed whether it belongs to "fair use" from the following three levels:
0 1? Whether it is an appropriate quotation.
The "graphic" interpretation behavior of the drama series involved is different from that of film critics. Film criticism works often inevitably need to introduce the film and television drama works themselves and reproduce some pictures of the film and television drama works for targeted comments. However, in this case, the photo collections involved are almost all the existing expressions of the original series, which far exceeds the limit of the necessity of proper quotation for comment purposes. The standard of reasonable quotation does not depend on the proportion of quotation, but on the reasonable need of introduction, comment or explanation. According to the ascertained facts, it can be seen that the purpose of providing the photo albums involved is not to introduce or comment, but to meet the needs of users to understand the plot and the main picture content in a short time through continuous screening of more than 300 photo albums under the background of today's "fast food culture". The above purpose of use is not a critical quotation, so it cannot be regarded as an appropriate quotation.
Whether it affects the normal use of the work.
The photo album involved in the case collects the pictures of the whole work in a decentralized way, and with the dynamic plot description in the text explanation, it can substantially present the specific performance of the whole drama, including the specific plot, the main picture and the main line. The public can quickly know the key pictures and main plots of the drama involved by browsing the above photo albums. The act of providing photo albums has played a substantial substitute role for the drama involved and affected the normal use of the works.
Whether it unreasonably damages the legitimate rights and interests of the copyright owner.
Due to the substitution effect of the photo album involved, the corresponding market share that the right holder should enjoy will be occupied by visiting the photo album, and the act of providing the photo album will have a substantial impact on the market value of the original. Although the company believes that the behavior provided by the photo album involved in the case has a "propaganda effect" on the original work, from the market point of view, there are significant differences between the behavior provided for the purpose of publicity and the behavior provided for the purpose of substitution. As far as the main functions provided by the photo album involved are concerned, it covers the main plots and key pictures of the drama series involved, rather than providing publicity information to the public to keep the plot suspense. Under normal circumstances, it is difficult to stimulate the audience's further interest in watching movies, and it does not have the publicity effect in line with the interests of the obligee, which damages the legitimate rights and interests of the obligee.
Therefore, the defendant's behavior of providing the photo album involved in the case has exceeded the necessary limit of proper citation, which has affected the normal use of the drama series involved and damaged the legitimate rights and interests of the obligee, and is not a fair use.
This paper is adapted from (20 19) Jing 049 1 663 at the beginning of the Republic of China.