Why does Visual China dare to grab copyright so blatantly? Why can it always win?
The cause of this may go back to 2014. Because of the dispute of copyright infringement, Huagai Creative (Beijing) Image Technology Co., Ltd. (Visual China Department) brought Harbin Zhenglin Software Development Co., Ltd. to court. After three rounds of trial, the Supreme Peoples Court finally decided that the infringement was established.
At the same time, in the Summary of the Annual Report of the Supreme Peoples Court on Intellectual Property Cases (2014), the above cases are listed as typical cases.
Daily economic journalists have also recently combed and found that in addition to visual China, panoramic network and other domestic commercial photo library platforms, there are also many chaos. A picture of Mona Lisa that could be freely used by the public as early as 400 years ago was sold to 2100 yuan by a photo platform.
And for image users, how to deal with such copyright problems?
Data Map (Photo Source: Photograph Network)
How does visual China win many battles?
Nov. 17, 2014, is an important day for Huagai Company.
After the third trial, the Supreme Peoples Court ruled that, from the date of the judgment coming into effect, Harbin Zhenglin Software Development Co., Ltd. stopped using the pictures in the brochures of Standard Manufacturing Solutions for Zhenglin Workauto - Excellent Manufacturing Management Experts and We Know the Way of the King - Zhenglin Workauto Information Management Platform Determines Everything.
This is what happened: gettyimagesinc, June 9, 2008. The senior vice president of Getty signed a confirmation letter confirming that Getty mages China is the authorized representative of Getty company in the Peoples Republic of China.
Among them, the accused infringement pictures used in the case-related enterprise publicity Zhenglin Workautos Standard Manufacturing Solution-Excellent Manufacturing Management Expert are identical with the pictures numbered aa030502 of Getty company; the accused infringement pictures used in the case-related enterprise publicity We Know the Way of the King-Zhenglin Workauto Information Management Platform Determines Everything, and the number of Getty company is aa. The content of 030502 is the same, but in the opposite direction. The brochure is signed Zhenglin Software and has the name, address, telephone, fax and website of Zhenglin Company.
According to the Supreme Peoples Court, Getty and Huagai have a large number of pictures. They basically operate by uploading pictures on official websites and purchasing them directly online. Although the pictures posted on its website are different from those published in public publications in the traditional sense, they are also a way of publishing to the public. Therefore, the signature on the website, including the right declaration and watermarks in this case, constitutes the preliminary evidence to prove the ownership of copyright. In the absence of contrary evidence, it can be used as a proof of the enjoyment of copyright.
At the same time, in the Summary of the Annual Report of the Supreme Peoples Court on Intellectual Property Cases (2014), the above cases are listed as typical cases. The report points out that in the case of copyright infringement disputes between Huagai Company and Zhenglin Company [(2014) Minti No. 57], the Supreme Peoples Court pointed out that although the behavior of professional photo companies to upload pictures and sell them on official websites is different from the traditional sense of publishing, it is also a way of publishing them to the public. The signature of the work in the website, including the right declaration and watermarks, constitutes a preliminary proof of the ownership of copyright in the absence of evidence to the contrary.
After the above judgment came into effect, Visual China and its companies embarked on the litigation highway nationwide.
According to the Peoples Court Announcement Network, in 2016, Huagai Companys relevant judgment documents reached five, with one copy of the indictment and one summons for hearing and one executive document. In 2017, another Visual China Department company, Hanhua Yimei (Tianjin) Image Technology Co., Ltd., has 14 copies of the indictment and summons for the hearing. In 2018, there were 7 copies of indictments and summonses and 7 referee documents.
Wang Navy, a lawyer at Beijing Dehe Heng Law Firm, told Nbdnews that Chinas overall protection of intellectual property rights is increasing. Visual China has transformed it into a business model through this way of safeguarding rights.
In addition, lawyer Yang Ruyi of Hengtai Law Firm also pointed out on the official micro-signal of his law firm that the analysis of the majority of cases in which visual China won the lawsuit will reveal thatu2014u2014
The copyright holders of many of his rights-claiming graphic works are presumed to be Getty Images. Visual China, through a letter of confirmation of authorization from its Vice President and General Counsel, claims that it is the sole authorized representative of Getty Images in China. It has the right to display, sell and license all images of its brand series in China. It has the right to take any unauthorized use of all images by any third party in its own name in China. Formal legal acts.
Lawyers View: Picture companies claim fraud if they do not enjoy copyright
The State Copyright Administration will incorporate the copyright protection of pictures into the upcoming Sword Net 2019 special action to further standardize the copyright order of the picture market.
In response to the controversy caused by the black hole copyright incident, the reporter (hereinafter referred to as NBD) interviewed lawyer Wang Weiwei, partner of Beijing Zhongwen Law Firm.
Lawyer Wang Weiwei was a well-known rule of law reporter in China. He is currently engaged in company compliance legal business, as well as major equity disputes, contract disputes and other civil and commercial litigation business. He is also a special commentator of many media.
Data Map (Photo Source: Photograph Network)
NBD: After the first black hole photo was released, the world brushed the screen, while Visual China put it in its gallery and said it could only be used after purchase. Many netizens also said that they had been forcibly demanded high copyright fees by photo companies such as Visual China and Panoramic Network in the name of copyright. In your opinion, is the business model of this kind of photo company compliant?
Wang Weiwei: In this case, people are very concerned about what is called extortion marketing. Is this marketing legal? We need to discuss it separately. For pictures that are legitimately copyrighted by photo companies such as Visual China and Panoramic Network, they claim their rights, such as litigation, and also say that commercial cooperation may be required through litigation. The business model itself is legitimate.
Why is it legal? First of all, it is the copyright owner or authorized person, and the prosecuted party is indeed the infringer. As the copyright owner, it does have the right to sue the infringer, and its subsequent request for commercial cooperation is actually the scope permitted by law. Because even in the litigation process, the court will still preside over mediation, in which the parties may negotiate various possible ways of reconciliation, including commercial cooperation, which is still in the space permitted by law.
On the other hand, some people say that companies like Panoramic Networks and Visual China may raise their prices in compensation claims if they intend to talk about business cooperation with photo users, but the latter fails to cooperate with them. I think its unreasonable, but at least legal. Because copyright parties are required to follow the market price, but there is no such price regulation at present. It can not be said that it is illegal to charge hundreds more yuan. I think its commercial. Therefore, as far as its basic business model itself is concerned, it belongs to the scope of the law.
But on the other hand, yesterdays black hole pictures, flags and national emblem pictures and other events exposed, Visual China, Panoramic Network and other company websites actually have a large number of pictures that do not have copyright. For these pictures, if these companies still claim copyright to these so-called infringers as copyright owners or authorized persons, it is called fraud. If they reach a certain level from quantity to amount, they may constitute a crime of fraud in criminal law.
But there is no evidence that these companies are claiming compensation from photo users with photos of former leaders of the country, for example.
Photo Source: Interview from the official website of the European Southern Observatory
NBD: Take black hole photographs, which the company claims can only be used after purchase, but in fact it has not been transferred by the European Southern Observatory. In terms of the incident itself, do you think the photo company is legal?
Wang Weiwei: If so, it must be a kind of fraud.
NBD: In addition, if you also need to buy a picture of the national flag and emblem of a visual Chinese website and a picture of a former national leader on a panoramic network to use it, is this a compliance?
Wang Weiwei: If so, we can call it fraud. But they certainly have their own wind control compliance departments, such as the national flag and emblem. Although they are on their website, they have payment requirements, but you use them, and it is unlikely to bring a lawsuit against them.
NBD: So if I download the picture after paying for it according to their prompt or request, and then I find that it is not copyrighted, I dont actually have to pay for it, can I sue the photo company?
Wang Weiwei: This must be prosecutable.
Users can investigate whether the other party really legally enjoys the copyright and claim the return of unjust enrichment.
NBD: Many netizens said that they had been forced to charge high copyright fees in the name of copyright by such companies, which is also known as extortion of rights by the public. In this case, how should photo users deal with it?
Wang Weiwei: People still need to raise their awareness of copyright. On the one hand, when acquiring a work, they should pay attention to whether the copyright belongs to the work. On the other hand, in the process of using the work, they should use it reasonably and not use the copyrighted work for commercial purposes. If you need to use a large number of pictures, you should choose to buy copyright according to law. At the same time, when facing the corresponding disputes, there is no need to panic, try to investigate whether the advocates of rights and interests really enjoy the copyright of the disputed works legally, and through the creation of works, market and other factors to measure the value of the disputed works, so as to get a reasonable price to safeguard their legitimate rights and interests. You can also choose to seek help from professional legal professionals.
That is to say, first, dont be frightened by the amount of claim it sues, think that the price of a photo is so high, I may have more than 1,000 infringements later, worried about the high amount. But dont be scared. Second, dont be influenced by previous judicial precedents. Because the amount of compensation for infringement of such pictures varies greatly among courts and judges across the country. The price depends on the difficulty of photography, originality and the use of the work, so the final actual amount of compensation is also very different. If the picture is easy to shoot, the amount of compensation may be very low.
(Note: In an interview with Daily Economic News, another lawyer who did not want to be named also pointed out that if the relevant website is not the copyright owner of the work or has not been legally authorized, its so-called rights-defending behavior should not be protected by law. The relevant payers can exercise the right of claim for return of unjust enrichment and ask for its return. )
Peoples Dailys previous comments (photo source: as of Sina Weibo)
NBD: From a regulatory point of view, what can we do to regulate this kind of business?
Wang Weiwei: At present, the reasonable use system and legal license system of picture copyright in China still need to be improved. In terms of the use of literary copyright, at present, the National Development and Reform Commission and the State Copyright Administration have jointly formulated the Measures for Payment of Written Works, but the relevant measures for pictures have not yet been formulated. This also makes the pricing of picture works on the market lack of reference. It is suggested that the use and payment of photographic works should be systematically regulated according to the difficulty, originality and use of photographic works, and that a reference industry standard should be given to the users of photographic works. At the same time, the order in the industry should be adjusted and standardized. In addition, the copyright department should also strengthen the daily supervision of photo galleries and other companies, regularly check the copyright photo galleries of all countries, to avoid overfilling. NBD: What are your comments on the business practices of such photo companies? Wang Weiwei: As one of the photo companies, it should improve its own regulatory system. On the one hand, the photographersphotographic works should be strictly audited to prevent unauthorized works from being included in the copyright repository; on the other hand, the pricing mechanism should be worked out to adjust the characteristics of the works so as to make the pricing of the pictures more reasonable. Source: Liable Editor of Daily Economic News: Liu Yuxin_NBJS7825
Wang Weiwei: At present, the reasonable use system and legal license system of picture copyright in China still need to be improved. In terms of the use of literary copyright, at present, the National Development and Reform Commission and the State Copyright Administration have jointly formulated the Measures for Payment of Written Works, but the relevant measures for pictures have not yet been formulated. This also makes the pricing of picture works on the market lack of reference. It is suggested that the use and payment of photographic works should be systematically regulated according to the difficulty, originality and use of photographic works, and that a reference industry standard should be given to the users of photographic works. At the same time, the order in the industry should be adjusted and standardized. In addition, the copyright department should also strengthen the daily supervision of photo galleries and other companies, regularly check the copyright photo galleries of all countries, to avoid overfilling.
NBD: What are your comments on the business practices of such photo companies?
Wang Weiwei: As one of the photo companies, it should improve its own regulatory system. On the one hand, the photographersphotographic works should be strictly audited to prevent unauthorized works from being included in the copyright repository; on the other hand, the pricing mechanism should be worked out to adjust the characteristics of the works so as to make the pricing of the pictures more reasonable.