How to prevent copyright infringement – Four things you shouldn’t do on an enterprise social media account in China
(Author: He Fang; Source: King & Wood Mallesons)
In today’s mobile internet era, social media channels such as Weibo and WeChat have become an essential tool in most enterprise companies’ marketing arsenals. However, enterprises often fail to pay enough attention to copyright issues when operating their official accounts. The 2016 White Paper on WeChat Intellectual Property Protection, released by Tencent, shows that there were more than 13,000 intellectual property complaints relating to WeChat during 2015, of which more than 40% were copyright-related.
The number of copyright lawsuits is also growing fast in China’s social media space. In a recent matter, Visual China Group (VCG), a leading visual content provider, sued Tencent for RMB 180,000 for using 9 images without acknowledgement. The court handed down a decision ordering Tencent to pay VCG RMB 40,000 in the end, and the case generated a high level of public interest. It is important to note, however, that the speed and fragmented nature of social media imposes new challenges for the application of copyright law in China.
So how do you prevent inadvertent copyright infringement on your enterprise social media accounts? We outline the four things that you shouldn’t do below.
Don’t try to reduce costs by using “free” online images
While there are numerous online photo galleries that allow users to freely download and use images, downloading these images for commercial use places you at a high risk of copyright infringement since the online photo galleries themselves may not comply with copyright laws.
Occasionally, authorised image libraries also offer free download access to users. However, it is usually clearly stated in their copyright notices that the free image downloads can only be used for personal or corporate non-commercial purposes. Social media managers must heed the difference between commercial use and personal use, and not put their company at risk of infringement unconsciously. Even for certain copyrighted, paid images, an enterprise should be cautious when using them in official WeChat or Weibo accounts, since prices may differ between private and public uses.
Don’t improperly reprint, forward or reproduce content
Social media is fundamentally about sharing content. Generally, forwarding content involves no revision of the original work so academic and judicial circles, and individual users, generally have quite liberal views on forwarding. In contrast, reprinting or reproducing content can involve editing which may affect the rights and interests of the original author, and should therefore be subject to stricter regulation.
According to China’s existing copyright legislation, unauthorised online reprinting is neither considered a reasonable use nor a legal license or “quasi-legal license”. The legal license provided in Article 1 of the Copyright Law of the People’s Republic of China refers to the “legal license for reprinting in newspapers or periodicals”, whose application is limited only to reprinting in newspapers and periodicals. It was once provided in a judicial interpretation of the Supreme People’s Court that “the quasi-legal license for reprinting in newspapers and periodicals” shall also be applicable to internet dissemination, but the provision was later deleted.
This means that “the quasi-legal license for reprinting in newspapers and periodicals” does not apply to internet dissemination including enterprises’ reprinting on social media. Therefore, even though unauthorised reprinting, where the original author and source are clearly indicated, does not infringe upon the right of authorship, it still constitutes infringement upon information network transmission rights. If there is no indication of the original author and the content is passed off as one’s own work, both copyright-related property rights (specifically, information network transmission rights) and relevant moral rights are infringed upon.
To regulate reprinting on the internet, the Notice of the General Office of the National Copyright Administration on Regulating the Order of Reprinting of Copyrighted Works on Information Networks issued in 2015 clearly provides that when reprinting content on the internet, it is a requirement to comply with relevant copyright laws and regulations, obtain licenses from copyright owners, pay the owners compensation for reprinting, and indicate the name of each author and the title and source of each work. Also, material revisions to the work are not allowed; and where the title and contents of the work are editorially modified and abridged, it cannot distort or tamper with the original intention of the title and the work.
As to multiple reprinting by different publishers, i.e., where A reprints B’s article without permission and indication of the original author, and subsequently C reprints the same article from A, B is also entitled to claim copyright infringement against C. If C has fulfilled the duty of care, then C, as a bona fide third party, is only obligated to cease such infringement without paying compensation. Otherwise, if C is also involved in illegal reprinting, C should cease such infringement and be liable for compensation.
Don’t try to gain popularity through plagiarism and adaptation
Social media managers must be careful when using adapted works. Elements of classic works are frequently used by enterprises in their promotional materials on social media platforms. Elaborately adapted images or music versions may attract internet users, but unauthorised adaptation and use may fall into the enforcement scope of copyright laws. For example, in the middle of last year, a well-known home appliance manufacturer used an adapted piece of music without permission in its official WeChat account for promoting its rice cooker products, and was sued by Xiao Ke (小柯), author of the original music, for RMB 5 million. In another case, a TV station adapted and used famous cartoon figures and their story in a reality TV program and posted a large amount of promotional materials on its official Weibo account. They were sued for RMB 4 million by the copyright owner.
Don’t publish translated articles without permission
Some enterprises often forward foreign articles on their official social media accounts and provide translations. However, it is worth noting that, as translations are included in “derivative works”, right of translation is considered a derivative work right under copyright laws. Despite the territorial protection of copyrights, as party to the Berne Convention and other international treaties and bilateral or multilateral conventions, China is obliged to protect the rights of the copyright owners in other contracting regions. Therefore, the dissemination of translations of foreign articles on the internet without permission is considered copyright infringement and not reasonable use.
Abiding by IP law when using social media
Enterprises should use duly operated image libraries and obtain necessary licenses before using any images so as to avoid infringement risks. Also, they must make efforts to obtain permission from original authors before reproducing, translating and adapting others’ works. Generally, the use of any article or image with an unidentified author should be avoided, and in the case of necessary use under special circumstances, a relevant statement should be made to facilitate contact by the author.
When facing an infringement claim, enterprises do not need to panic. An enterprise should first verify the ownership and validity term of right of the allegedly infringed work. According to copyright laws, convincible evidence for determining the copyright owner includes the original manuscript, original copy and legitimate publication of the work in dispute. Enterprises will not be held responsible for infringement if no valid evidence is submitted by the claimant or the copyright has expired (in extreme circumstances), but in the event that the claimant is the legitimate copyright owner, the claim needs to be seriously considered. If the claimed amount is acceptable, a settlement with the claimant is advisable in consideration of the cost of litigation; and if the claimed amount is excessive or unreasonable, and the parties fail to further negotiate, the enterprise should pursue professional legal advice.
Thanks to Luo Junpeng (intern) for his contribution to this article.
The 2016 White Paper on WeChat Intellectual Property Protection
Quanjing.com, a professional image platform in China, promotes free image download service for all personal and corporate non-commercial use. (See http://www.ikanchai.com/20170120/116951.shtml)
Article 17 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in Trial of Civil Dispute Cases of Infringement of Copyrights expressly provides that, reprinting provided in the Copyright Law refers to reprinting in newspapers or periodicals of works that have been published in other newspapers or periodicals.
Article 3 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in Trial of Cases Involving Computer Network Copyright Disputes issued in 2001 and amended in 2004 provided that “Those who reprint or extract and edit through network any works that have been published in newspapers and periodicals or disseminated through networks do not constitute infringement if they have paid remunerations according to relevant provisions and indicated source, unless copyright owners or Internet Service Providers entrusted by copyright owners declare that no reprinting or extracting and editing is allowed. But if the works reprinted or extracted and edited exceed the scope of the works permitted to be reprinted, such reprinting, extracting and editing shall be deemed as infringement”. However, on 1 January 2013, when the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in Trial of Civil Dispute Cases Involving Infringement of the Right of Dissemination on Information Networks took effective, the previous judicial interpretation was abolished. The legal license for online reprinting is not specified in the new provisions.