Presiding Judge]: Plaintiff, do you have anything to add to the defendant's cross-examination opinions? [Main]: First, the defendant raised the relevant. Because the grain book shows that the author is the plaintiff Yang Xin, and the notarial certificate shows that the defendant used the plaintiff's works. [First]: Second, regarding the power of attorney and the settlement agreement, we think there is no question of authenticity, because the settlement agreement has been actually fulfilled. Although the contract is not complete, the content is true [primary]: in the settlement agreement reached between Beijing Daoxiang Cunsan and Xin Yang, it is mentioned that they will continue to use it, but it should be noted that they are * * *, and both of them only have two works. [Primary]: The first settlement agreement will pay 200,000 yuan, and the second settlement agreement will pay 80,000 yuan. This kind of use is not a long-term use, but a fixed-term use. Judging from the frequency and amount of use, the amount of compensation we require is very reasonable. [[Primary]: In addition, the other agent mentioned the topic of Yang Xin. Yang Xin National Studio is just his name, not a legal person, so the subject should also be Yang Xin himself. [
Presiding Judge]: Plaintiff, you now advocate that the defendant use your painting, and briefly explain the scope and size. [Elementary]: First of all, it's a big number. Some infringing units only use one or two pictures, but the use of such a large number as the defendant is unprecedented, reaching 70, and it is on important occasions. [Primary]: Then they enlarged the picture and destroyed the integrity of the work, that is, they deleted the author's signature and added words to the work through technical processing. Although these words are related to the works, they can't be found in the original works. These are all manifestations of the defendant's infringement. [Elementary]: They usually publish three or four pictures in their works, which are about two to three meters high and easy to watch. Because the size cannot be measured, we can only estimate that it should be two to three meters high and about one meter wide. [
Presiding Judge]: Plaintiff, show the court the situation of your infringement and plagiarism, have you done any comparison work, and relevant materials. (Sketch of projector) [Elementary]: The "short selling bamboo" on page 20 1 of Beijing time-honored brand has been reversed. On the left is Yang Xin's works on page 2/kloc-0 of Outside the Door, and on the right is the works used by international hotels. The International Hotel added a caption to the right of Yang Xin's works, which destroyed the integrity of Yang Xin's works [primary]: Yang Xin's works should have been square and the corners were very clear, but the defendant blurred the corners in use. On page 109 of Outside the Big Front Gate, there is also a picture of "being poor and not afraid". The use of words on the left side of Beijing International Hotel and the deletion around it violated the right to protect the integrity of works. [Original]: There is also a picture on page 65 of Beijing Old Business. The deletion of the International Hotel in the course of use violated Yang Xin's right of authorship, the right to protect the integrity of the work and the right to modify it. These two works also violated Yang Xin's right of authorship, the right to protect the integrity of the film and the right to modify it. [Primary]: Yang Xin's Play with Pigeons has also been violated by international hotels. [
Presiding Judge]: Does the defendant have any comments? [Dai]: It was not used by the defendant Beijing International Hotel, but by Beijing Nortel Film and Television Training Center for commercial purposes. The results of their use were displayed as decorative materials on the wall of the defendant's 28th floor. Because the picture was certified by Nortel in the last trial, we also certified it accordingly. [
Presiding Judge]: Does the defendant agree that these paintings should be painted on the wall of the international hotel? [Dai Dai]: Because it was used by Nortel, they approved it, so we also approved it at that time. I agree that these pictures are used on the dining room wall on the 28th floor of the International Hotel. [
Presiding Judge]: Does the plaintiff have any new evidence to submit to the court? [Main]:No. [
Presiding Judge]: The defendant will present the evidence and explain the purpose of proof. [Agent]: Eight pieces of evidence were submitted. The first evidence proves that Beijing International Hotel entrusted Beijing Nortel Film and Television Training Center to design and decorate the 28-floor Starlight Restaurant as a whole and pay related expenses.
[Daidai]: Second, it proves that this agreement is the result of the renovation of Nortel Film and Television Training Center, which not only caused the operating losses of Beijing International Hotel, but also assumed other losses caused by the renovation design. The third is to prove that the international hotel has fulfilled the obligation of review in the use of decoration materials, and there is no fault. [Dai Li]: The second evidence proves that there are three objects. First, it proves that Beijing International Hotel was designed by others for production and decoration, and it also proves that the defendant has fulfilled his duty of diligence and should not be liable for compensation according to law. [Dai]: The third is to prove that Beijing Nortel Film and Television Training Center is a legal design unit, so the defendant has fulfilled his obligations. Therefore, he should not undertake the obligation to examine whether the materials used by design units and construction units are infringing, and there is no fault. Of course, he will not bear legal responsibility. [Daidai]: The registration form for the old Beijing-themed food festival provided by the Fourth Starlight Restaurant is an internal act. [Substitution]: According to the principle of consistency of rights and obligations, the design and production unit shall bear the responsibility for the infringement caused to the third party by the use of decorative materials, and the defendant without fault shall not bear the legal responsibility. [Replacement]: The fifth evidence has two objects to prove. One is to prove that the defendant entrusted a professional design unit to design and paid the corresponding fees. The other is that according to the principle of consistency of rights and obligations, the defendant should not bear legal responsibility after paying the fees. [Replacement]: There are two objects of proof in the sixth evidence acceptance form. First, the defendant used a professional design unit for construction, and there was no obligation to review the materials used; Second, according to the terms of the contract, the defendant should not bear the corresponding responsibility, and according to the defendant's internal examination and approval procedures, it also fulfilled its management responsibility without fault. [Dai Li]: The seventh evidence proves that there are two objects. First, when the defendant decorated the restaurant, he highlighted the history and culture of Beijing, indicating that he had fulfilled his obligations when choosing a designer. As for whether the design unit has fulfilled its due obligations, Nortel Film and Television Training Center should bear the responsibility; [Dai]: Second, when choosing the old Beijing theme photos, it is mentioned that we should consult with the copyright owner and pay attention to the protection of intellectual property rights, which shows that international hotels have paid attention to the protection of intellectual property rights. [Dai Li]: The eighth evidence is about July 23, 2007 after the plaintiff entrusted a natural person to send an opinion letter. At that time, the defendant immediately found the Nortel Film and Television Training Center and asked it to explain and rectify the possible situation of decorative materials. After that, Nortel will replace the plaintiff's copyright or inkjet materials based on his works, which shows that the defendant has fulfilled his due legal obligations after learning that it may be infringed. [
Presiding Judge]: The defendant provides the plaintiff with the original evidence. (Brief Statement) [Main]: From item 1 to item 7, we have no significance to the authenticity and legality of the original evidence provided by the defendant, but we have objections to the authenticity of the original evidence provided by the defendant. [First]: That is to say, we have no objection to the cooperation agreement and do not recognize the authenticity of other evidence. We believe that the eight pieces of evidence provided by the defendant are irrelevant to this case, because this is a design and decoration agreement and a series of corresponding documents signed between Beijing International Hotel and a third party, and we believe that the infringer is Beijing International Hotel. [First]: According to the relevant laws and regulations, the infringer cannot get rid of the tort liability just because it was designed by others. The copyright law requires everyone to fulfill strict censorship obligations when using other people's works. [
Presiding Judge]: In the last evidence exchange, the defendant asked Nortel Film and Television Center to testify in court. Have the relevant witnesses been notified to appear in court? [Dai Dai]: I didn't inform them to appear in court. [ 10:06:53] [
Presiding Judge]: The court will read the witness statement in the final cross-examination. All three witnesses are employees of Beijing Nortel Film and Television Production Training Center. ] [
Presiding Judge]: The witness stated that the Beijing Nortel Film and Television Production Center cooperated with the activities of old Beijing, involving 70 pictures, and the relevant pictures were recognized by the court as Yang Xin's works, which were renovated in June and July 2007 and replaced in July 2007. [
Presiding Judge]: Does the plaintiff have any comments on the above statement? [Primary]: There is an error in the decoration time. In addition, replacement is only a part of it. [
Presiding Judge]: Does the defendant have any comments? [Replacement]: Acknowledge the testimony of witnesses. [
Presiding Judge]: Apart from the above evidence, have both parties submitted any new evidence to the court?
[Primary]: No [Replace]: No [
Presiding Judge]: Both parties have no supplementary evidence, and the court investigation is over. Now both sides can ask each other questions about the facts of this case. Did the plaintiff ask any questions? [Main]:No. [
Presiding Judge]: Does the defendant have any questions? [Representative]: It's still the opinion in the cross-examination just now. Is lawyer Sheng, who notarized this case, an agent? [Main]: The question raised by the defendant does not exist. [
Presiding Judge]: Plaintiff, how many copies of Plaintiff's works have been included in The Old Bank outside Beijing and Daqianmen? [Primary]: More than 200 pieces, including 70 pieces involved in this case. [
Presiding Judge]: The plaintiff claims that the defendant has the idea of playing TV series from time to time in Starlight Restaurant. Is there anything to explain about this fact? [Primary]: The defendant installed three televisions in the revolving restaurant, and every work they made was played in them, usually at night. We also insist on the defendant's tort claim. [ 10: 15:26] [
Presiding Judge]: Does the defendant have any comments? [Dai Dai]: Because there is no evidence to prove that we are not good at comparing facts, it is not convenient to express our opinions. It is not recognized here. [Main]: At the last cross-examination, a witness mentioned that they approved the broadcast of TV. [ 10: 16:24] [
Presiding judge]: At that time, the court asked if there were any TV films, and one of the witnesses said no, but he just carved the photos into CDs and handed them to the international hotel. Plaintiff, can you confirm the time of infringement? [[Primary election]: It should be in early May. [
Presiding Judge]: You said that building materials were used on the canteen wall of Beijing Nortel Film and Television Center? [Dai]: Because the old photos are synthesized by technology and made into inkjet wallpaper, Beijing Nortel Film and Television Center uses the pictures containing the plaintiff's works as building materials for the design of international hotels. [
Presiding Judge]: Are these paintings painted or installed? [Daidai]: Make wallpaper. [
Presiding Judge]: Defendant, when do you think the work will be used? [Daidai]: used by Beijing Nortel Film and Television Center. The performance result is on the 28th floor of national hotel, and the time should be from early June to late July. [
Presiding Judge]: Do you have any objection to the ownership of the plaintiff's works? [Daidai]: We have no objection to the plaintiff's copyright in the original work [
Presiding Judge]: Did you put forward any requirements when you entrusted Beijing Nortel Film and Television Production Center to carry out the overall design and decoration? Daidai: I just said that we should promote old Beijing and Beijing cuisine in combination with the theme of the 2008 Olympic Games. As for how to cooperate with the designed decoration scheme, it should be completed by Nortel Film and Television Production Center according to the contract. There are no other requirements. [
Presiding Judge]: During and after the design and renovation of Beijing Nortel Film and Television Production and Design Center, did you carry out the corresponding acceptance? How did you carry out the acceptance? [Entrustment]: We reviewed the main qualification of the design unit when signing the contract, and Nortel should bear the responsibility if it causes damage to the third party. [
Presiding Judge]: You asked Nortel to change the wallpaper. When explaining this situation, you have a censorship statement, so how did you accept the censorship? ] [Dai Dai]: We have reviewed everything that the law entrusts us with the obligation to review. [
Presiding Judge]: During and after the renovation of the house, there must be a review to determine whether the decoration design of the other party meets your requirements. [Substitution]: We have fulfilled our obligations after signing the contract, and the acceptance has also been accepted. [
Presiding Judge]: You saw the pictures on the wallpaper during the acceptance. Did you ask the source of the pictures of Nortel?
[Dai Dai]: The legal liability for the use of building materials is clearly stipulated in the contract with Nortel, and we have no obligation to review it. [
Presiding Judge]: Do the two sides have anything to add to the facts? [primary]: number [replacement]: number? The court will summarize the court investigation below. The court has found out the following facts: 1. The court confirmed that the plaintiff enjoyed the copyright of 70 photos involved. The court held that this case has the following controversial points: First, whether the defendant is a qualified subject to bear tort liability in this case; The second is the amount of infringement compensation for the defendant. Do both sides have any objection to this? [Owner]: No [generation]: No [
Presiding Judge]: The court has investigated this and both parties will defend themselves. First of all, the plaintiff will express his opinion. (3) Court debate stage [primary]: First, express opinions on whether the defendant is a qualified subject. As a five-star international hotel, the defendant often holds some activities, and restaurants often use other people's works of art to attract tourists. In this case, if the defendant only used a contract to shirk responsibility, it would violate the relevant provisions of the copyright law. [Primary]: As for the relationship between international hotels and design units and decoration units, it is another legal relationship. Beijing International Hotel should take legal action with other design units and decoration units after compensating Yang Xin for its losses. The design unit and decoration unit have nothing to do with this case. [First]: In addition, we think that the compensation amount of 700,000 yuan is also very reasonable. The value of Yang Xin's works in the past authorized reconciliation is very high. We believe that Beijing International Hotel, as a five-star international hotel, has been in use from May 18 to August, and it is reasonable to claim compensation of 700,000 yuan for using so many works in such a long time span. [
Presiding Judge]: The defendant argued. [Replaced]:
To sum up, the presiding judge mentioned that this case revolves around two controversial issues, one is the qualification issue, and the other is the amount of compensation. This can evolve into three aspects, one is the qualification of the subject, the other is the facts of the case, and the third is the application of the law. Generation: The eligible subject is an important issue in litigation. The plaintiff's agent proposed that the defendant should compensate the plaintiff's losses, and then the defendant and Nortel should settle the relevant disputes. Since both sides think so, we should increase the participation of Nortel Center in litigation, so that the subject of the case can be more perfect. This is not only the right of the parties, but also the requirement of the people's court to hear the case. [
Presiding Judge]: Defendant, I want to interrupt you. What I just said is whether the defendant is a qualified subject to bear tort liability. [Generation]: According to the law, all parties have the right to apply for the addition of a third party. The key to finding out the facts in this case is who used the building materials containing the plaintiff's works, that is, the direct users. The user who directly uses the plaintiff's works as decorative materials is Beijing Nortel Film and Television Training Center, and the results must be displayed on the wall of the restaurant on the 28th floor of Frontier Hotel. [Daidai]: The party that directly benefits from using or directly using the plaintiff's works as decorative materials or for commercial purposes is Beijing Nortel Film and Television Training Center. Therefore, the defendant should not bear the corresponding legal responsibility. [Dai]: The Guiding Opinions of the Beijing Higher People's Court on Determining the Liability for Compensation for Copyright Infringement clearly stipulates the liability for infringement. Only when the infringement exists and the defendant who commits the infringement is subjectively at fault should he bear the corresponding legal responsibility. If the defendant is not at fault, he should not be held responsible. [[Dai Dai]: 1. In this case, we found that the plaintiff's works as decorative materials may be infringed, and immediately asked Nortel Center to replace them. The defendant was not at fault. Second, we have fulfilled our obligations from the principle of consistency of rights and obligations, and the consequences caused by others using the plaintiff's works as decorative materials should not be borne by those who have fulfilled our review obligations. [Daidai]: Third, those who do not conform to social experience, business scope of legal persons and industry requirements shall bear legal responsibilities. International hotels, as legal institutions providing guest rooms and catering services, should fulfill their duty of care when providing catering, conference and room services to customers, and the selection of new building materials exceeds the duty of care that international hotels can meet their experience. [[Dai Dai]: It can be seen that the international hotel has fulfilled its due review obligations. Although the result of this case appeared in the defendant's 28-story restaurant, the defendant should not be held responsible. This is our view on qualification. [Daidai]: Second, regarding the amount of infringement, we repeatedly stressed in the court investigation that the infringer is not an international hotel.
[Agent]: The plaintiff submitted three pieces of evidence that were inconsistent with the contents of the evidence and unqualified in form. After we put forward the cross-examination opinion, we will compare the amount according to the facts and relevant laws, indicating that the plaintiff's claim for compensation of 700,000 yuan has no factual and legal basis. [Substitution]: The amount should be based on whether it is used for commercial purposes, the scope of use, the theme of use and the content related to the theme, which is different from the evidence submitted by the plaintiff. [
Presiding Judge]: We can argue with each other. Does the plaintiff have a problem? [Main]: What the defendant said was the use result and the use process, but we don't think this can explain who used it, just the agreement between the defendant and the third party. As consumers, we go to international hotels to spend money, and we see that international hotels use Yang Xin's works, which is the use of international hotels, that is, the infringement of international hotels. [Main]: Regarding the breach of contract between the International Hotel and Nortel Center, this is not the same legal relationship with this case. The defendant also mentioned that he did not ask about the source and provenance of the work during the use, which can also be judged that the defendant did not fulfill any duty of examination and attention. [Dai]: Regarding compensation, we have seen the legal provisions and judicial interpretations of the Beijing Higher People's Court, and we have not seen the evidence that the plaintiff directly lost 700,000 yuan. The use of materials containing the plaintiff's works by international hotels did not bring benefits to them, but was a loss. Therefore, the plaintiff has no basis to support his claim in terms of amount or reason. (iv) Court mediation and judgment stage] [
Presiding Judge]: If both sides have no new opinions, the court debate is over here. According to the relevant provisions of the Civil Procedure Law, the court is obliged to preside over the consultations between the two parties. Does the plaintiff agree that the court will preside over mediation? [[Primary]: Disagree with mediation. [
Presiding Judge]: In view of one party's disagreement with mediation, our court will no longer conduct mediation. The two sides made their final statements. [Primary]: Insist. [Substitution]: Insist on replying. [
Presiding Judge]: We will adjourn for 0/5 minutes, and the verdict will be pronounced after the collegial panel meets. [Moderator]: Dear netizens, members of the collegial panel are now retiring to discuss the case collectively. The trial will continue in 15 minutes. [Moderator]: Now the collegial panel is deliberating the case, and a judgment will be made in 15 minutes. A moment, please. [Moderator]: Now members of the collegial panel are in court. [Clerk]: Please all stand up.
The presiding judge and the judge entered the court. [
Presiding Judge]: Now continue the trial. [
Presiding Judge]: This case has just passed the collegial panel of the trial and the collegial panel, and will now be pronounced in court. [
Presiding Judge]: The plaintiff has created a batch of old commercial art works in Beijing and outside Daqianmen. As the author of this collection of colored pencil paintings, the copyright of his works is protected according to law. Although the defendant denied the relevance of the above-mentioned concentration of works to this case, there was no legal reason, and our court refused to adopt it. Without the permission of the plaintiff, no one may use the artistic works involved in which the plaintiff enjoys copyright in any way other than fair use as stipulated in the copyright law. [
Presiding Judge]: During the design and decoration of its Starlight Restaurant, the defendant used the works of art for which the plaintiff enjoyed copyright in its business premises without the permission of the plaintiff, and changed the color, proportion and content of some works of art, without signing the plaintiff's name and without paying remuneration, which infringed the plaintiff's right to sign, modify, copy, display and get remuneration in the copyright of the works involved, and should bear corresponding tort liability. [
Presiding Judge]: The defendant believes that Beijing Nortel Film and Television Training Center is an outsider involved in the infringement. It is clearly stipulated in the entrustment contract between the two parties that if infringement is involved, the responsibility shall be borne by Beijing Nortel Film and Television Training Center, and the defendant shall not bear the opinion of infringing the plaintiff's copyright. [
Presiding Judge]: We believe that the infringing works of art involved in the case are used by the defendant's business, and the defendant entrusts others to carry them out in its business premises, and the defendant should be responsible for the infringement consequences of this act; As for the agreement between the defendant and the outsider Beijing Nortel Film and Television Training Center on the entrusted matters, due to the relativity of the contract, it can only bind the parties to the contract. For the responsibilities arising from the performance of the entrustment contract, the principal shall first bear the responsibilities to the third party outside the contract. [
Presiding Judge]: In summary, the verdict is as follows: 1. Within ten days from the effective date of this judgment, the defendant Beijing International Hotel shall compensate the plaintiff Yang Xin for the economic loss of 2 1 10,000 yuan and the reasonable expenses of stopping the infringement of 60 10 yuan. 2. Reject the plaintiff Yang Xin's other claims. [
Presiding Judge]: If the defendant Beijing International Hotel fails to fulfill its obligation to pay money within the period specified in this judgment, it shall pay double interest on the debt during the delayed performance in accordance with the provisions of Article 232 of the Civil Procedure Law of People's Republic of China (PRC). [
Presiding Judge]: The acceptance fee of this case 10800 yuan shall be paid by the plaintiff Yang Xin (2800 yuan) and the defendant Beijing International Hotel (8000 yuan). [
Presiding Judge]: The court is adjourned, and the written record will be read and signed by the parties.