Text: Deep-water fish, [2004-10-29 21:19: 58] read 15 16 times.
(Taiwan Province Province) Riyue Technology Co., Ltd. v. beijing happy valley Technology Co., Ltd. Civil Judgment of First Instance on Cooperation Contract Disputes (2004) No.02743.
People's Republic of China (PRC) Beijing No.2 Intermediate People's Court
civil judgment
(2004) No.02743 No.2 Middle School Minchuzi
Plaintiff (Taiwan Province Province) Riyue Technology Co., Ltd., located at the 9th floor, No.88 Heqiao Road, Zhonghe City, Taipei County, Taiwan Province Province, China.
Legal Representative: Pan, board chairman.
Authorized Agent: Bin Xu, lawyer of Beijing Shouxin Law Firm.
Defendant beijing happy valley Technology Co., Ltd., whose domicile is Room 308, No.39 Xingfu Avenue, Chongwen District, Beijing, People's Republic of China (PRC).
Legal Representative: Wang Wei, chairman of the board.
Authorized Agent: Elvis Presley, male, Han nationality, born at 1973 13, patent agent of Beijing Gaobo Longhua Patent and Trademark Agency Co., Ltd., living atNo. 1, Jiang Tai Office, Chaoyang District, Beijing.
Authorized Agent: Li Qingmin, lawyer of Beijing Gaobo Longhua Law Firm.
After the plaintiff (Taiwan Province Province) Riyue Technology Co., Ltd. (hereinafter referred to as Riyue Company) and the defendant beijing happy valley Technology Co., Ltd. (hereinafter referred to as Happy Valley Company) accepted the case, our college formed a collegial panel according to law and held a public hearing on February 25, 2004. Bin Xu, the plaintiff's attorney, Wang Wei, the defendant's legal attorney, and Elvis Presley, his attorney, attended the proceedings. The case has now been closed.
The plaintiff Riyue Company sued that the "Pocket Mouse Computer Course" was independently developed by the plaintiff and is a set of professional software suitable for computer multimedia teaching courses in kindergartens. On April 8th, 20001year, the plaintiff and the defendant signed the Cooperation Draft for Computer Teaching Courses in Kindergartens (hereinafter referred to as the Cooperation Draft), stipulating that the plaintiff would provide the master and production technical materials for the computer course of pocket mouse, and the defendant would make and distribute it in China as an agent. 20% of the plaintiff's income and 80% of the defendant's income; The copyright of "Pocket Mouse Computer Course" belongs to the plaintiff. On August 9, 200 1, 1, the defendant entrusted a third party to copy Pocket Mouse Computer Course and related products 1000 sets, and sold them publicly. The tutorials and demo discs sold are signed by the defendant, but the plaintiff is not indicated as the obligee. On August 25th, 20001year, the plaintiff signed an agreement with the defendant, allowing the defendant to apply for copyright registration in his own name, but the original copyright belongs to the plaintiff. 200165438+February 12, the plaintiff's representative Xu Lichuan signed a memorandum with the defendant's legal representative Wang Wei, stipulating that the copyright registration of the "Pocket Mouse Computer Course" software in China belongs to the plaintiff, and the defendant should pay the plaintiff royalties from 700 yuan to 850 yuan for each set of "Pocket Mouse Computer Course". However, the defendant did not fulfill the terms agreed in the above draft agreement, agreement and memorandum, nor did he pay the plaintiff the remuneration for the use. Therefore, the plaintiff sent the Notice of Understanding to the defendant in March and August, 2002 respectively. So I told the court to ask for a decree: to terminate the cooperation draft and agreement; The defendant returned the software copyright registration certificate involved; The defendant stopped making and selling the CD products involved; The defendant compensated the plaintiff for the economic loss caused by the breach of contract of RMB 500,000; The defendant bears the legal costs of this case.
The defendant, Happy Valley Company, argued that the copyright of the software Pocket Mouse Computer Course advocated by the plaintiff belongs to (Taiwan Province Province) Heyang Technology Co., Ltd., because the dispute between the company and the plaintiff about the ownership of the software involved is under trial in the Taiwan Province Provincial Court, and the case should be suspended. The defendant enjoys the copyright of 37 CDs involved, and the products involved in the draft cooperation agreement are 30 CDs. According to the provisions of the draft agreement, the defendant modified and remade the CD of the plaintiff's "Pocket Mouse Computer Course", which led to changes in the content and form of the CD. There are 37 CD-ROM products modified and reproduced, and the defendant shall enjoy the copyright. The plaintiff asked the defendant to return the 37 CDs involved. The defendant performed his obligations in full accordance with the contract and there was no breach of contract. The draft cooperation agreement and the agreement are still valid and should continue to be implemented. The plaintiff did not provide any evidence of the defendant's breach of contract, and there was no basis for asking the defendant to compensate him for his economic loss of RMB500,000. To sum up, the court is requested to reject the plaintiff's claim.
In order to prove its claim, the plaintiff Riyue Company submitted the following evidential materials to our hospital:
1, a set of "Pocket Mouse Computer Tutorial" (37 pieces) and "R&D Diary", which prove that the "Pocket Mouse Children's Computer Multimedia Tutorial Education Software" registered by the defendant was independently developed by the plaintiff;
A cooperation draft signed by the plaintiff and the defendant to prove the defendant's breach of contract;
3. 1. The commissioned production contract signed between the defendant and Beijing Humane Jinbiao Technology Co., Ltd. (hereinafter referred to as Humane Jinbiao Company), which proves that the defendant entrusted a third party to copy the software and related products involved 1000 sets;
4. The agreement signed by the plaintiff and the defendant to prove the defendant's breach of contract;
5. Computer software copyright registration certificate and comparison report, which prove that the defendant registered the pocket mouse computer course independently developed by the plaintiff in his own name;
6. The memorandum signed by the legal representatives of the defendant Wang Wei and Xu Lichuan on 200 1 12 12, which proves that the defendant violated the provisions of the memorandum;
7.2. The notices of termination of the contract dated March 29th, 2002 and August 6th, 2002/KLOC-0, which prove that the plaintiff has sent the notice of termination of the contract to the defendant twice.
The defendant, Happy Valley Company, submitted the following evidential materials to our court to prove its defense claim:
1. Power of Attorney for Pocket Mouse Multimedia Series CD, which proves that the plaintiff granted the defendant the copyright, reproduction, modification, distribution and other rights and interests of Pocket Mouse Multimedia Course;
2.2. The entrustment contract signed by the defendant and outsiders Li Xue and Liu Hongxia, which proves that the defendant revised and created the Multimedia Course of Pocket Mouse for Children;
3. Civil Mediation ([2002] Chong Min Chu ZiNo.. Chongwen District People's Court of Beijing 1288), which proves the time and quantity when the defendant obtained the products of Pocket Mouse Computer Course;
1. receipt of multimedia tutorial of pocket mouse computer, which proves that Xu Lichuan, the plaintiff's agent, entrusted to copy the tutorial of pocket mouse computer and extracted some products;
Litigation materials of copyright dispute between Heyang Technology Co., Ltd. and the plaintiff (Taiwan Province Province), which prove that the plaintiff does not enjoy the copyright of the "Pocket Mouse and Computer Course" involved;
6. The notice of the civil trial court of Taibei District Court of Taiwan Province Province is the same as the above certificate.
The defendant Happy Valley Company put forward the following cross-examination opinions on the evidence materials submitted by the plaintiff:
Objecting to the authenticity of the master copy of the plaintiff's evidence 1, the comparison report of evidence 5, the memorandum of evidence 6 and the first notice of termination of the contract of evidence 7, and holding that the above-mentioned evidence materials have not fulfilled the notarization and authentication procedures; Have no objection to the authenticity of other evidence; Evidence 1' s "R&D Diary" was made by computer, without the specific time of R&D and the signature of R&D personnel, so it may be decompiled by software, and this evidence has no probative force; Evidence 2: The draft contract stipulates that the defendant will entrust the production of 30 Pocket Mouse Computer Tutorials and 37 Pocket Mouse Children Computer Multimedia Tutorials. The defendant enjoys the copyright of the latter, and there is no breach of contract. The defendant did not receive the notice of termination dated August 16, 2002 in Evidence 7.
Plaintiff Riyue Company issued the following cross-examination opinions on the evidence materials submitted by the defendant:
No objection to evidence 1 and 3; Objection to evidence 2, arguing that the copyright of the software should be the compilation of the program, narration and dubbing are not adaptations, and there is no other evidence to prove whether the contract has actually been fulfilled; Evidence 4 can prove that most of the software products involved have been taken away by Wang Wei, the legal representative of the defendant, and Xu Lichuan only took a small part, and Xu Lichuan was the defendant's shareholder before 2002 10, and his behavior represented the defendant, and Xu Lichuan was transferred to the plaintiff's job after 2002 10; Evidence 5 does not constitute a reason to suspend this case, which belongs to a contract dispute, and this evidence has nothing to do with this case; Evidence 6 does not have notarization and authentication procedures, and the accused is Lin Minglang, which has nothing to do with this case.
According to the cross-examination opinions of both parties, we certify as follows:
Regarding the plaintiff's evidence 1, as the defendant recognized that the master disk of the plaintiff's evidence 1 was consistent with the contents of the software products involved in the copy and publication entrusted by the defendant, our court confirmed it; The defendant failed to submit evidence to the contrary, and our court confirmed the probative force of R&D Diary. The defendant has no objection to the authenticity of the plaintiff's evidence 2, 3 and 4, and our court confirms the evidential validity of the above evidence. As for the plaintiff's evidence 5, since the defendant has no objection to the Computer Software Copyright Registration Certificate, our court confirms it; Because the defendant failed to submit evidence to the contrary, the comparison report issued by the plaintiff himself was regarded as a factual statement of the comparison of the contents of the software products involved. As for the plaintiff's evidence 6, in view of the defendant's objection to its authenticity and the lack of original evidence, the memorandum was only signed by an individual. According to the plaintiff's claim, Xu Lichuan is still the defendant's shareholder at this time and cannot represent the plaintiff, so the contents of the memorandum are not binding on both the original defendant and the defendant, so our court will not confirm the probative force of the evidence. For the plaintiff's evidence 7, the defendant refused to recognize the authenticity of the first notice of termination, but recognized the authenticity of the second notice of termination. Although the defendant thought that the second notice of termination had not been received, the evidence was used as a statement issued by the plaintiff to the defendant, and our court confirmed the probative force of the evidence.
The plaintiff has no objection to the authenticity of the defendant's evidence 1, 3 and 4, and our court confirms the probative effect of the evidence. As for the defendant's evidence 2, although the plaintiff disagreed with its authenticity, the plaintiff recognized that the defendant had narrated, dubbed and partially changed the software involved, so our court did not recognize the authenticity of the evidence, but confirmed the above facts recognized by the plaintiff. The plaintiff has no objection to the authenticity of the defendant's evidence 5, and our court confirms the authenticity and relevance of the evidence. As for the defendant's evidence 6, in view of the plaintiff's objection to its authenticity, this evidence does not have notarization and authentication procedures, and the defendant failed to provide further evidence, so our court could not confirm its authenticity.
Based on the evidence, cross-examination, statements of the parties and our appraisal, our court finds that the facts of this case are as follows:
On April 200 1 18, the plaintiff Riyue Company and the defendant Happy Valley Company signed a draft cooperation agreement. The draft agreement stipulates that the plaintiff provides CD-ROM products for kindergarten computer teaching courses, and the defendant is responsible for the marketing and after-sales service of the products; The content and framework of CD-ROM products are 30 computer CDs (the content is divided into three levels), the first level has 60 units, the second level has 60 teaching units, and the third level has 90 game units. If the language version of CD products needs to be changed (such as Beijing dialect, etc.). ), the defendant should find a suitable and professional voice actor to assist the plaintiff in modifying the CD-ROM products, so as to facilitate the marketing and promotion of the defendant; The defendant is responsible for sending the CD-ROM products to the relevant units for inspection, which conforms to the relevant laws and regulations of the target market and is conducive to the promotion and legality of the CD-ROM products; The plaintiff is responsible for the appropriate revision of the contents of the CD-ROM products, and cooperates with the adjustment of the defendant's third trial; The plaintiff is responsible for providing the defendant with complete originals of original materials of CD-ROM products, such as CD-ROM master, icon files, index files and teachers' teaching guides, and handing them over to the defendant for printing, tabletting, packaging and marketing; The plaintiff respects the defendant's sovereignty in marketing and grants the defendant full rights to promote and serve the market; The product data and information contacted by both parties during the cooperation period shall be kept confidential and shall not be told to a third party to protect the rights and interests of both parties, except for the facts of cooperation; During the cooperation period, if the defendant needs the plaintiff to send relevant personnel to the place designated by the defendant for assistance, the related travel expenses and accommodation expenses of the plaintiff's personnel shall be borne by the defendant; The benefit agreement of both parties is that the defendant gets 80% of the sales agent's income, and the plaintiff is authorized to get 20% of the CD products (each product) and each set of additional fees. Both parties collect income according to the product shipment details, and the plaintiff asks the defendant for money according to the defendant's product shipment details, and issues a certificate or invoice to the defendant according to the income; The intellectual property and copyright of optical disc products belong to the plaintiff, and the defendant shall abide by the relevant intellectual property law and copyright law; The cooperation proposed by both parties is valid for five years, that is, from April 18, 2006 to April 17, 2005. Any change or modification shall be made in writing after mutual agreement. The above draft terms are the outline of cooperation between the two parties, and the relevant details can be signed separately in the formal contract.
On the same day, the plaintiff and the defendant signed the Power of Attorney for Pocket Mouse Multimedia Series CD, stipulating that the plaintiff authorized the defendant to own the copyright in the authorized area of Pocket Mouse Multimedia Series CD, and can enjoy the right to copy, modify and distribute in the authorized area within the authorization period. The authorized area is Chinese mainland, and the authorized period is from April 5, 2006 to April 2005.
On August 9th, 2000 1, the defendant signed a software entrustment contract for pocket mouse children's multimedia courseware with Humane Gold Label Company, stipulating that Humane Gold Label Company would accept the entrustment of the defendant and provide the following goods and services:1,with 39-type design on the surface of the software CD; 2. The color cover and back cover of the safe are designed in thirty-nine styles; 3. Revise and typeset 6 children's exercise books; 4. Revise and typeset four teaching manuals; 5. Four designs of large class, middle class, small class and English paste extraction box; 6. Design a complete large packaging box for the software; 7. Type 39 printing film on the disk surface of the software CD; 8. Thirty-nine master disks; 9.39,000 software CDs were reproduced in 39 styles. 10,38,000 benzene-permeable round-corner safes (74g each). It is also stipulated in the contract that the defendant should pay 139000 yuan listed in the appendix fee table of Humane Gold Standard Company by cheque or cash when signing the contract, which will expire before September 30 this year, and the defendant should pay the third-party printer deposit of 5 1000 yuan paid by Humane Gold Standard Company on August 28 this year.
On August 25th, 20001year, the plaintiff and the defendant signed the Agreement on Entrusting the Defendant to Apply for Copyright of Computer Software in Chinese mainland, stipulating that the plaintiff should apply for copyright registration in China in the name of the Defendant. The original copyright belongs to the plaintiff; The defendant represented the plaintiff in selling pocket mouse software or related products in China during the cooperation period; The defendant shall be responsible for coordinating the manufacture of all pocket mouse software or related products before they are released in China, but the defendant shall add the plaintiff's consent column in the power of attorney signed with the manufacturer, and the defendant shall not manufacture them without authorization before the plaintiff or the plaintiff's appointed agent signs it.
On September 26th, 20001year, the National Copyright Administration of China issued the Computer Software Copyright Registration Certificate with the soft document number of 001120 and the registration number of 200 1 sr4187 to the defendant. The name of the software is Pocket Mouse Computer Multimedia Tutorial Education Software (Pocket Mouse Computer Tutorial for short) V 1. 1, and the copyright owner is the defendant. It is presumed that the software copyright owner will enjoy the copyright of the software within the statutory time limit from July 29, 2006 +0.
The People's Court of Chongwen District, Beijing, People's Republic of China (PRC) issued a civil mediation document ([2002] MinchuziNo. 1288) on June, 200212002, concerning the dispute between Humane Gold Label Company and Happy Valley Company about the multimedia tutorial software of pocket mouse computer. The main contents of the conciliation statement are: September 2002.
On June 14, 2002, Humane Gold Label Company issued a statement on the entrusted debt of Happy Valley Company, which listed the situation that Happy Valley Company took delivery of goods from the warehouse of Humane Gold Label Company on May 23, 2002, indicating that Happy Valley Company actually took 748 sets of compact mouse software CDs.
The multimedia course for children's computer with pocket mouse produced by Happy Valley Company is printed with the words "beijing happy valley Science and Technology Co., Ltd. authorizes China Standard Publishing House to publish and distribute" and "All rights reserved, responsibility shall be investigated" on the outer packaging box, color cover and CD surface. During the trial of this case, the plaintiff recognized that the defendant Happy Valley Company, as the copyright owner, signed a publishing contract with China Standard Publishing House, but thought that it was against the agreement of both parties to mark the above contents on the CD products without indicating the plaintiff's identity as the copyright owner. At the same time, the plaintiff thinks that the copyright page of the CD involved is marked with the words "beijing happy valley Science and Technology Co., Ltd. will conduct copyright investigation on the distribution service", which is confusing.
On August 16, 2002, the plaintiff sent a fax of "Notice of Termination" to the defendant, claiming that the defendant violated the provisions of Article 2, Paragraph 4, Paragraph 6, Paragraph 11, Article 4, Article 6 and Article 8, paragraph 1 of the cooperation draft, resulting in the loss of the goodwill and economic interests of the plaintiff and the pocket mouse software products, so it was decided to suspend the cooperation with the defendant and terminate all rights with the defendant.
According to the Delivery List of Pocket Mouse Multimedia Course issued by the defendant Happy Valley Company, the legal representative of the defendant Happy Valley Company, Wang Wei, received 58 sets of multimedia teaching CDs and 350 sets of demonstration CDs from the defendant Happy Valley Company from July 30, 2006 to September 30, 2006. From August 28th, 2006 +0 to October 7th, 2002 10, Xu Lichuan extracted 108 sets of computer multimedia teaching discs and10 sets of demonstration discs. The defendant believes that Xu Lichuan's delivery behavior represents the plaintiff, and the plaintiff claims that Xu Lichuan is still the defendant's shareholder during the above period, and his delivery behavior represents the defendant. Xu Lichuan worked for the plaintiff after June 5438 +2002 10. As the evidence memorandum submitted by the plaintiff shows that Xu Lichuan represented the plaintiff when signing the memorandum on 200 1 12 12, the plaintiff failed to submit sufficient evidence to prove the time point of Xu Lichuan's identity change.
The defendant, Happy Valley Company, claimed that it entrusted Humane Gold Label Company to produce the CD-ROM product 1000 sets of multimedia tutorial for pocket mouse involved, which was approved by the plaintiff. However, the defendant claimed that it only obtained 735 sets of CD products from Humane Gold Label Company, while Xu Lichuan, the agent of the plaintiff Riyue Company, took away more than 50 sets of CD products without authorization, which the plaintiff did not recognize. In this regard, the plaintiff claimed that the defendant had sold at least 1000 sets of optical disc products involved, but it failed to submit corresponding evidence to prove it. So far, the defendant has approved the sale of 248 sets of the CD-ROM products, with a total inventory of 546 sets, of which 346 sets are in the warehouse. About 200 sets of samples of surplus commodities have not been sold in the hands of local agents. The retail price of CD products is 2500 yuan, but the actual selling price is about 1 000 yuan. The defendant failed to submit evidence to prove this. The plaintiff objected to the above facts identified by the defendant, but failed to submit corresponding evidence to support his objection.
The defendant, Happy Valley Company, claimed in the lawsuit that the 37 CD-ROM products involved in the case were narrated and dubbed by outsiders entrusted by it, and the 30 CD-ROM products agreed in the cooperation draft were modified and made in terms of graphics, pictures, structure and music, and they enjoyed the copyright of 37 CD-ROM products. However, the plaintiff Riyue Company believes that the defendant only narrated and dubbed 37 CD products, and the 30 CD products agreed in the draft cooperation agreement were changed to 37 CD products through negotiation by both parties, and the copyright of 37 CD products was still enjoyed by the plaintiff, and 37 master discs and comparison reports issued by the plaintiff were provided as evidence. According to the comparison report issued by the plaintiff, the 37 mother discs and 37 optical discs involved in the case are the same in other aspects except for different installation methods and the same parts at the beginning of screen entry. The defendant did not raise any objection to the fact that the contents of 37 mother discs and 37 optical discs involved were the same.
During the trial, the defendant Happy Valley Company proposed in the cooperation draft that the plaintiff enjoyed the copyright of the Pocket Mouse Computer Course software, but the copyright was in an uncertain state. Because the plaintiff's "Pocket Mouse Computer Course" software was suspected of infringing the copyright of (Taiwan Province Province) Heyang Technology Co., Ltd., (Taiwan Province Province) Heyang Technology Co., Ltd. has filed criminal and civil lawsuits. Although the plaintiff acknowledged the existence of this fact, he claimed that the Taiwan Province Provincial Court did not actually accept it. The above facts have nothing to do with this case.
After trial, the plaintiff submitted an agreement signed by the legal representatives of the defendants, Wang Wei, Xu Lichuan and Cheng Zhenwu, on March 9, 20001,and a statistical table of mouse software and related products extracted by the defendant on May 23, 2002, showing that Wang Wei, Xu Lichuan and Cheng Zhenwu were the defendants' shareholders, and the defendant extracted 748 sets of mouse software and 359 sets of Qi Bo mouse demonstration discs. However, the submission time of the above-mentioned evidence materials has exceeded the plaintiff's proof period, and there is no reason to show that the above-mentioned evidence materials belong to new evidence, so the court will not adopt the above-mentioned evidence materials.
In another investigation, the plaintiff believed that the defendant Happy Valley Company entrusted Humanities Gold Label Company to process and produce 0/000 sets of CD products involved, and each set was sold at a unit price of 2,500 yuan, and claimed that the defendant should compensate it for 500,000 yuan according to the agreement on income distribution in the draft cooperation agreement between the two parties, and the calculation formula was:1000× 2,500× 20%. The defendant refused to recognize this, saying that it actually sold 248 sets, and Xu Lichuan, the plaintiff's representative, had extracted some of the CD products involved, so the plaintiff had actually obtained the income, and the defendant should not pay the income from selling the CD products involved. In addition, the plaintiff did not claim other economic losses.
We believe that the draft cooperation agreement and agreement signed by the plaintiff Riyue Company and the defendant Happy Valley Company is the true intention of both parties and is legal and effective. According to the law, a legally established contract is legally binding on the parties, and the parties shall perform their obligations in accordance with the agreement and shall not change or terminate the contract without authorization. The defendant proposed to suspend the trial of this case on the grounds that there was a copyright infringement dispute between the plaintiff and the outsider (Taiwan Province Province) and Yang Technology Co., Ltd., and the plaintiff's identity as the copyright owner of the pocket mouse computer multimedia tutorial software involved was uncertain. In view of the lack of factual and legal basis, this lawsuit is rejected by our court.
The focus of the dispute between the two parties in this case is: whether the defendant violated the provisions of the cooperation draft and the agreement involved; Whether corresponding compensation should be paid to the plaintiff; Whether the cooperation draft and agreement should be dissolved.
First of all, there is a question about whether the defendant violated the cooperation draft.
The plaintiff claimed that the defendant's failure to pay the plaintiff the income agreed in the cooperation draft for selling the computer multimedia tutorial CD product of the pocket mouse involved constituted a breach of contract. According to the facts ascertained in this case, the defendant entrusted Humanistic Gold Label Company to make the CD products involved, and actually extracted 748 sets of CD products. Although the defendant claimed that he took 735 sets of optical disc products involved in the case and actually sold 248 sets, the selling unit price was 2,500 yuan per set, and the actual selling unit price was about 1000 yuan per set, and there were still about 200 sets of optical disc products involved in the case to be sold at foreign agents, he failed to submit sufficient evidence to prove the above statistical results. Although the plaintiff claimed that the defendant entrusted Humanistic Gold Label Company to produce 1000 sets of CD products involved, and actually extracted and sold 1000 sets of CD products involved, it failed to submit corresponding evidence to prove it. In view of the defendant's recognition of its actual inventory of 346 sets, based on the evidence in this case, it can be proved that the defendant actually extracted 748 sets of optical disc products involved and 346 sets of actual inventory recognized by the defendant, and it was determined that the defendant sold 402 sets of optical disc products involved. Since both parties have no objection to the terms of the cooperation agreement that proceeds from the sales amount of the involved CD-ROM products, the defendant shall pay the plaintiff the corresponding proceeds of 402 sets of involved CD-ROM products according to the proportion agreed by both parties. Although the draft cooperation does not clearly stipulate the time limit for the defendant to pay the plaintiff's income, according to the law, if the time limit for performance is not clear, the creditor can ask the debtor to perform at any time on the premise of leaving the necessary preparation time. Therefore, since the defendant has taken out 748 sets of CD-ROM products involved in the case and sold them one after another on May 23rd, 2002, the cooperation draft was dissolved after the plaintiff sent a notice to the defendant on August 6th, 2002 that the defendant failed to fulfill the agreed obligation to pay the proceeds. By the time the plaintiff filed a lawsuit, the defendant had not paid the plaintiff the corresponding price for selling the CD products involved. Therefore, it should be considered that the above-mentioned behavior of the defendant constitutes a breach of contract. The defendant claimed that both parties should negotiate on the payment of income, and the defendant's failure to pay the corresponding income to the plaintiff did not constitute a breach of contract, which was not accepted by our court because of insufficient evidence.
Secondly, regarding the above-mentioned breach of contract by the defendant, the plaintiff claimed that the defendant paid 500,000 yuan in compensation.
According to the facts ascertained in this case, the plaintiff, through his agent Xu Lichuan, took delivery of the CD-ROM products 108 sets from August 28th, 2006 to October 7th, 2002. The plaintiff claimed that Xu Lichuan represented the defendant rather than the plaintiff during the above-mentioned period, and Xu Lichuan only had the identity of representing the plaintiff after 5438+00 June 2002. Therefore, Xu Lichuan's act of extracting the CD products involved during the above period cannot be regarded as representing the plaintiff, but as the defendant's shareholder. However, according to the memorandum of Evidence 6 submitted by the plaintiff, the plaintiff clearly stated that Xu Lichuan signed the memorandum on behalf of the plaintiff on February 1 2006. It can be seen that the plaintiff's statement that Xu Lichuan represented the plaintiff after June 10, 2002 is different from his statement in the memorandum of Evidence 6. Accordingly, it should be considered that the plaintiff's claim that Xu Lichuan extracted the CD products involved does not mean that the plaintiff's claim is untrue. The plaintiff actually extracted 108 sets of CD-ROM products involved, and its behavior of directly extracting CD-ROM products involved and handling them by itself also violated the relevant agreement that the defendant was responsible for product marketing and after-sales service in the cooperation draft. As mentioned above, the defendant actually sold 402 sets of CD products involved. According to the income distribution ratio agreed in the cooperation draft and the unit price of CD products marked as 2500 yuan, the defendant should pay the plaintiff 20 1000 yuan (the calculation formula is 402×2500×20%), and the plaintiff actually disposed of the CD products involved 108 sets. The actual value is 270,000 yuan (the calculation formula is 108×2500), and the value obtained by the plaintiff is enough to offset the income that the defendant should pay to the plaintiff. Therefore, the defendant does not need to pay the plaintiff the corresponding income from the sale of 402 sets of optical disc products involved. In this case, the plaintiff claimed that the defendant had sold 1000 sets of CD products involved, and the defendant paid the plaintiff a penalty of 500,000 yuan, which was not supported by our court because of the lack of factual and legal basis.
Thirdly, whether the defendant commissioned the production of the CD-ROM products involved violated the agreement on copyright in the cooperation draft and agreement.
According to the ascertained facts, the contents of the 30-disc pocket mouse computer multimedia teaching software agreed by the plaintiff in the cooperation draft are basically the same as those of the 37-disc pocket mouse computer multimedia teaching software for children entrusted by the defendant involved in the case, but the narration and dubbing are changed as necessary according to the cooperation draft. The defendant claims to obtain the right to edit 30 sets of pocket mouse computer multimedia tutorial software according to the power of attorney signed by both parties. He made great changes in narration, dubbing, music, pictures and other aspects of the software, and incorporated the defendant's creative achievements, thus forming a 37-disc pocket mouse multimedia tutorial product for children's computers, which enjoys copyright. However, the defendant failed to submit corresponding evidence to support his above-mentioned claim, and our court rejected his above-mentioned claim.
The existing evidence in this case shows that on April 8, 200 1 and 65438+8, the plaintiff and the defendant signed the cooperation draft and the power of attorney at the same time. According to the power of attorney, the defendant was authorized by the plaintiff to own the copyright of the CD-ROM product in Chinese mainland, and the defendant enjoyed the rights of reproduction, modification and distribution within the authorization period. The power of attorney is the embodiment of the content of copyright rights agreed in the cooperation draft, which makes it clear that the defendant enjoys the copyright rights within the scope of authorization for the CD products involved. On August 9th of the same year, 19, the defendant entrusted Humanjinbiao Company to process and manufacture the optical disc products involved, including copying optical discs, designing and printing packaging boxes, etc. The outer packaging box, color cover and CD surface of the CD products involved in the case processed and produced by Humane Gold Label Company are printed with copyright descriptions such as "beijing happy valley Science and Technology Co., Ltd. authorizes China Standard Publishing House to publish and distribute" and "all rights reserved", and the copyright page of the CD products involved is marked with "beijing happy valley Science and Technology Co., Ltd. will investigate the distribution service". It can be seen that the above-mentioned behavior of the defendant conforms to the provisions of the Cooperation Draft and the Power of Attorney. Then, on August 25th, the plaintiff signed an agreement with the defendant, stipulating that the defendant can apply for the copyright registration of the computer multimedia tutorial software of pocket mouse in China in his own name, and the original copyright of the software belongs to the plaintiff. The agreement no longer confirms that the defendant enjoys the copyright of the involved optical disc products in Chinese mainland, and the agreed content of the copyright of the involved optical disc products tends to be consistent with the draft cooperation agreement.
Regarding whether the copyright notice marked on the package of the involved CD-ROM products constitutes a breach of contract, the defendant commissioned the production of CD-ROM products with copyright notice before the signing of the agreement, and before the signing of the agreement, the defendant enjoyed the corresponding rights and interests according to the power of attorney. In the same period, the plaintiff's representative Xu Lichuan and the defendant's legal representative Wang Wei actually extracted some of the CD products involved, so the copyright precautions marked on the packaging of the CD products involved were formed before the signing of the agreement. Although the above copyright statement does not indicate that the plaintiff is the original copyright owner of the CD products involved, it is indeed inappropriate. However, because the plaintiff recognized that the defendant applied for copyright registration of the multimedia tutorial software of the pocket mouse in his own name and authorized China Standard Publishing House to publish and distribute the involved CD-ROM products, it could not be directly determined that "beijing happy valley Technology Co., Ltd. authorized China Standard Publishing House to publish and distribute the involved CD-ROM products" and "all copyrights must be copied", which violated the relevant provisions of the agreement. Based on the above reasons, the copyright statement made by the defendant on the CD products involved in the case commissioned by the defendant did not violate the agreement signed between the defendant and the plaintiff.