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BEIJING MUNICIPALITY CHAOYANG DISTRICT PEOPLE’S COURT DISMISSES LIU XIAODONG’S S |
On 23 November 2010 at 11 a.m., the Beijing Municipality Chaoyang District People’s Court, in the matter of the claim of copyright infringement between the original claimant Liu Xiangdong and the defendants Gao Minglu, Guangxi Normal University Publishing Group Ltd (Guangxi Normal University Press), and Harbin Engineering University Press (Harbin Engineering Press). The Court dismisses the statement of claim by Liu Xiangdong.
The Court is of the opinion that: Turning to the case before the Court in order to determine whether or not the relevant works by Gao Minglu infringe the copyright in the relevant works by Liu Xiangdong, there are two points to examine: first, whether the expression of the relevant works by Gao Minglu is identical or similar to that of the relevant works by Liu Xiangdong; and second, whether the content of the works by Liu Xiangdong is embodied in the form executed by him to express his topics and ideas, and further whether the content in the works by Gao Minglu is identical or similar to that content.
As to the former point, according to the comparative list of plagiarism alleged by Liu Xiangdong, there are in the relevant works by Gao Minglu, apart from individual expressions of common usage, no complete sentences whatsoever that are identical or similar to Liu Xiangdong’s works. On the level of literal expression, the relevant works by Gao Minglu do not constitute an infringement of the copyright in the relevant works by Liu Xiangdong.
As to the latter point, the relevant works by Liu Xiangdong and the relevant works by Gao Minglu are all works of research in art theory. The content of this genre of works has a particular character. The content of the works is predominantly abstract concepts and systems, and it is difficult to distinguish the form expressing the ideas in the works from the ideas in the works as such. In such conditions, as between two works in this genre, unless the literal expression is identical, there can exist no infringement of copyright. In the present case specifically, taking the comparison of the concrete structure and content of the relevant works by Liu Xiangdong with the concrete structure and content of the relevant works by Gao Minglu one step further, the following points can be observed. First, looking at the content of the works, the three works in which Liu Xiangdong claims copyright are comparatively smaller, averaging some 2000 Chinese characters, and their main content is an account of ”Niushi art” and ”Xiangxiang art”, whereas the content in Gao Minglu’s works, one of 100,000 Chinese characters, the other of more than 30,000 Chinese characters, far exceeds that of the three works in which Liu Xiangdong claims copyright, and mainly contains an account and analysis of the ”School of Notion” (Yipai). Comparing the two, one finds there is a comparatively big difference. Second, as to the structure of the works, the nine counts of plagiarism claimed on Liu Xiangdong’s list all refer to comparisons of concepts and symbols, and these nine counts correspond in no case to the overall structure of Liu Xiangdong’s works, but to partial concepts and partial content in Liu Xiangdong’s works. Accordingly, comparing these nine counts to Gao Minglu’s works, whether or not the comparison might conclude there was similarity, it could not conclude identity of logical structure as between the writings of the two. Accordingly, on this second level also, there is no foundation for the claim raised by Liu Xiangdong of copyright infringement.
As there is no foundation for the claims of Liu Xiangdong against Gao Minglu, there is correspondingly also no foundation for the claims raised by Liu Xiangdong on the basis of those claims, against Guangxi Normal University Press and Harbin Engineering Press.
Court, having concluded the hearing, found, on the basis of Article 47 of the Copyright Law of the People’s Republic of China,[i] as follows:
The Court dismisses the statement of claim by Liu Xiangdong.
The case fee is 4500RMB, Liu Xiangdong has been offered ( It’s been paid).
[i] Copyright Law of the People’s Republic of China (1990), Article 47 Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making an apology or paying damages, depending on the circumstances' and may, in addition, be subjected by a copyright administration department to such administrative penalties as ceasing the infringing act, confiscating unlawful income from the act, confiscating and destroying infringing reproductions and imposing a fine; where the circumstances are serious, the copyright administration department may also confiscate the materials, tools, and equipment mainly used for making the infringing reproductions; and if the act constitutes a crime, the infringer shall be prosecuted for his criminal liability:
(1) reproducing, distributing, performing, showing, broadcasting, compiling or communicating to the public on an information network a work created by another person,
without the permission of the copyright owner, unless otherwise provided in this Law;
(2) publishing a book where the exclusive right of publication belongs to another person;
(3) reproducing and distributing a sound recording or video recording of a performance, or communicating to the public his performance on an information network without the permission of the performer, unless otherwise provided in the Law;
(4) reproducing and distributing or communicating to the public on an information network a sound recording or video recording produced by another person, without the permission of the producer, unless otherwise provided in the Law;
(5) broadcasting and reproducing a radio or television program produced by a radio station or television station without the permission of the radio station or television station, unless otherwise provided in this Law;
(6) intentionally circumventing or destroying the technological measures taken by a right holder for protecting the copyright or copyright-related rights in his work, sound recording or video recording, without the permission of the copyright owner, or the owner of the copyright-related rights, unless otherwise provided in law or in administrative regulations;
(7) intentionally deleting or altering the electronic right management information of a work, sound recording or video recording, without the permission of the copyright owner or the owner of a copyright-related right, unless otherwise provided in law or in administrative regulations;
or
(8) producing or selling a work where the signature of another is counterfeited.
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