At the request of netizens, at 2:00 pm on February 24, 2006, Zhang Weihua, director of Guangming Law Firm, lawyers Wang Mingxi, and lawyers Du Haiyan were guests at the Qianlong Forum to discuss "A Whether there are copyright infringement and other related matters in "The Murder Caused by Steamed Buns".
Steamed buns and grilled buns: Hu Ge’s copyright discussion
The following is the entire live broadcast:
The host browses netizens’ messages
Moderator People: Hello, fellow Qianlong netizens, and welcome to today’s program. Today I am very honored to have three lawyers, Zhang Weihua, Wang Mingxi and Du Haiyan from Beijing Guangming Law Firm. The topic I want to talk to you about today is a murder that was caused by the tampering of the steamed buns in the opening sequence of "The Promise" that has been circulating on the Internet recently.
(13:49) Host: Have you three seen this short film?
(13:49) Du Haiyan: I have seen it.
(13:49) Moderator: Saw it: How do you feel?
Lawyer Du Haiyan, Beijing Guangming Law Firm
(13:49) Du Haiyan: It’s more interesting from the public’s taste. But from a legal perspective it’s the same, I think it’s entertainment.
(13:50) Moderator: Director Chen Kaige knew about this incident when he attended the Berlin Film Festival. He said that he must sue and resolve the matter completely. Why do you think Director Chen is so excited? If he really wants to sue, what are his chances of winning?
(13:51) Zhang Weihua: Excitement cannot solve the problem. At present, prosecution is relatively difficult. First of all, Hu Ge has apologized. The purpose of the lawsuit is nothing more than to make the defendant compensate for economic losses and apologize.
(13:52) Moderator: Now that the purpose of the apology has been achieved, it now involves the issue of economic losses.
(13:53) Zhang Weihua: It is difficult to calculate the economic losses. The second thing is that the losses caused by surfing the Internet are not for profit. This is difficult to calculate. As Director Chen, there is no shortage of this so-called loss, but how to obtain legal rights and interests, it seems that the possibility of prosecution is unlikely now. Maybe he is a little more excited, and when he calms down, he might be more cautious.
(13:54) Host: This matter has attracted much attention from major media. As of February 13, more than 8,000 netizens have commented on this matter on a certain website. Most of them support Hu Ge. Why is public opinion one-sided?
(13:54) Zhang Weihua: I have not watched "The Promise". Firstly, "The Promise" may have disappointed everyone, and secondly, this steamed bun produced by Hu Ge entertained everyone. Secondly, I think netizens are more sympathetic to the weak.
(13:54) Host: Do you think Hu Ge is weak?
(13:54) Zhang Weihua: Compared with Director Chen, he should be a disadvantaged group.
(13:55) Moderator: Just now we talked about the issue of prosecution. Hu Ge’s lawyer said that Hu Ge had not received notice from the court. Did Director Chen really sue Hu Ge? If you have any questions, the prosecution does not have a definite answer yet?
(13:55) Wang Mingxi: There is no feedback so far.
(13:55) Du Haiyan: From a legal perspective, I personally think it constitutes infringement.
(13:58) Du Haiyan: Because our country’s copyright law clearly stipulates several rights, there are several rights that I think Hu Ge’s movie infringes on.
First, the right of reproduction, because many scenes of "The Promise" were copied into the movie, this is the right of reproduction. There are also adaptation rights. The right to adapt means using someone else's lens and adapting it to form a new work. This must be done with the consent of others. Now you are not adapting it yourself with the consent of others. There is also the actor’s right to perform. Many actors, such as Chen Hong, have appeared in Hu Ge's scenes. They also have their own rights and interests. If an actor reprints or disseminates it to the public without his or her consent, the law does not allow it.
(13:59) Du Haiyan: Judging from the content of the film, I think Hu Ge is suspected of infringing on their reputation rights. For example, there is a scene in the film that shows Chen Hong, whose name seems to be Chen Manshen, with a few words written below that he is a famous actor and producer. In fact, this directly points out Chen Hong. Chen Manshen is a clown right out of Hu Ge's movies. As an actor, what kind of rights should you choose? It may be that a clown can't act, but he insists on causing trouble for others, and the role is not good. ugly. The Civil Code also includes personal rights and reputation rights. So I think he violated her reputation as well.
(14:00) Zhang Weihua: Just talking about the right of reputation, Chen Kaige violated Hu Ge’s right of reputation. He said that Hu Ge was shameless. Shameless is definitely an insulting language, and in public** ** field. Chen Kaige is just a director, he has the director's signature rights, and the copyright is the main producer. I think this involves adaptation rights. Because Hu Ge adapted it and formed his own work with independent intellectual property rights.
(14:00) Moderator: Some netizens asked on the Internet that those historical dramas are not necessarily historical facts. Do screenwriters also have to litigate with directors?
(14:01) Zhang Weihua: That is historical fact. It does not belong to copyright, just like news events. After this is formed into text or film and television materials, and becomes copyrighted, it is protected by law. The content only tells historical stories. Historical stories are facts and cannot be said to be copyrights.
(14:03) Wang Mingxi: I don’t think it constitutes infringement. First of all, Hu Ge’s works are introduced in the review of "The Promise", but in a critical way. The way of criticism is not the way of using words, but the way of using works. We can look at "Steamed Buns" and see this A sarcastic comment that cites the work appropriately. The work "The Promise" lasts two hours, while "Steamed Buns" lasts 20 minutes, which accounts for almost 10% of the entire work. It is just an appropriate quotation and does not constitute infringement. In our country’s copyright law, the content of review articles can be used appropriately if properly quoted.
(14:03) Moderator: Do you think the use of Hu Ge is appropriate.
(14:04) Zhang Weihua: Our country’s copyright law has appropriate restrictions. If you are taking advantage of others, there are certain restrictions. I think the comment just now is far-fetched, because what Hu Ge described was made up for his own entertainment, and if he comments on the work, it can be said to constitute infringement. When you are engaged in legal work, what you recognize is not what others comment on. You have produced this work yourself. You say that this work was compiled for your own entertainment. If you say it is a review of "The Promise", I think it may not constitute infringement. , in fact, he believed that it was not a review of "The Promise", but his own work, purely for entertainment. Through Internet communication, I think this has constituted a kind of communication and has been published. This work is precisely based on "The Promise" directed by Chen Kaige. When you use other people's works, should you obtain their consent? It was for this reason that Hu Ge apologized to Chen Kaige.
(14:04) Moderator: If you ask for a claim, what is the amount of the claim?
(14:04) Zhang Weihua: This amount is difficult to calculate. I don't think Director Chen will sue either.
(14:04) Moderator: Some netizens on the Internet said that please evaluate Hu Ge’s behavior from moral standards.
(14:06) Du Haiyan: From now on, when Hu Ge makes this movie, it depends on his original intention. When it comes to morality, it depends on the original intention, because morality is not easy to regulate legally. From the perspective of my film, I don’t mean to belittle this film, or how to compare it to Chen Kaige. From a moral perspective, it is difficult to say that Hu Ge has any morality. question.
(14:07) Zhang Weihua: Because morality means that it is in the interests of most people, and it is immoral if it is not in the interest of most people. This work has been recognized by the majority of netizens and society, and I think it should be moral. Because it entertains everyone.
(14:07) Host: Everyone has high expectations for "The Promise". Why do you support "Steamed Buns" now? Perhaps everyone has such a sentiment. We see that this is not what we originally expected. There is a kind of emotion in it, so everyone supports the work "Steamed Buns".
(14:07) Host: He himself said that he walked into the theater with high expectations, but was disappointed after watching it, just for fun.
(14:10) Zhang Weihua: "Steamed Buns" definitely has an element of criticism. Our country has relatively little criticism of mainstream culture, which is not conducive to the formation of multiculturalism. I think there should be criticism, but comments are not necessarily It is praise, only criticism is progress. Hu Ge must have been somewhat critical in "Steamed Buns". "The Promise" is a commercial hype, and it is impossible to agree with the entertainment aesthetics of the general public. Moreover, he also wants to win awards and go global. We need to consider how the film is evaluated internationally, and we may not need to consider the evaluation of the film by the Chinese. Therefore, I think Hu Ge should have this factor in his criticism.
(14:10) Host: Do you think Director Chen’s statement about Hu Ge’s shamelessness constitutes a personal attack on Hu Ge? There are also many netizens who have published letters of support for Hu Ge. What do you think?
( 14:11) Zhang Weihua: Director Chen may have said this inadvertently, and it was a personal attack on us.
(14:11) Du. Haiyan: I still agree with our director’s point of view. It was published in a lukewarm manner, because Director Chen did not expect this film to appear in this form, so Director Chen was very angry when he saw it. But from a legal perspective, language with personal attacks is not allowed.
(14:11) Wang Mingxi: Attacking human dignity in public is considered a personal attack.
(14:12) Moderator: "Mantou" reported the image of the legal system without the consent of the "legal system". Is this an infringement?
(14:12) Wang Mingxi: He borrowed pictures from the Legal Newspaper, which I personally think is infringement.
(14:13) Zhang Weihua: There is no profit-making purpose on the Internet, and there is no other intention. It is just for self-entertainment, which does not constitute infringement. But I think you have to respect other people’s recognition of the fruits of their labor and notify them. As long as they agree to use it, even if they don’t agree, it will be considered an infringement.
(14:13) Wang Mingxi: Agree or disagreement is stipulated by law. There needs to be a certain amount of authorization.
(14:13) Moderator: The person in charge of the 12th Central Committee thought it was funny and they didn’t plan to sue Hu Ge.
(14 :14) Zhang Weihua: This is a mentality. If everything is serious, then many things will not be tolerated. From the perspective of personal self-interest, this mentality will not be considered as infringement of self-interest.
(14:14) Wang Mingxi: "Steamed Buns" is still very entertaining.
(14:14) Host: It is relatively common in foreign countries for TV works to be adapted on the Internet.
p>(14:15) Du Haiyan: There is indeed such a precedent in the United States. The content is similar to Hu Ge and "The Promise", but judging from the results of their judgment, it does not constitute infringement. I did not read this case carefully. Today. I watched it this morning. Film and television works are evaluated by the public. In our country, works are evaluated and introduced through pens, media and other forms. The times are constantly moving forward. Hu Ge’s behavior is actually a very subtle way. To do this in a way that better caters to the film’s appeals, opinions, etc. His evaluation does not constitute infringement according to American legal principles. But I think Hu Ge’s film quotes “The Promise”. Hu Ge’s films are all about “The Promise”, and I personally don’t think it’s appropriate to quote them.
(14:15) Moderator: How to define appropriateness and inappropriateness.
(14:16) Du Haiyan: This is the judge’s right to decide.
(14:18) Wang Mingxi: As a movie, including pictures and sounds, the sound of "Steamed Buns" is definitely not "The Promise", and the picture quotes more than ten percent of "The Promise", which is suitable for these two. There is no precise definition of the word, because there are few quotes, and there are very few quotes from the picture itself, with very few sounds. The author thinks it is more appropriate, and the only way is to adopt a clever name.
(14:18) Du Haiyan: My appropriateness is based on Hu Ge’s movies. Hu Ge’s movies mainly quote "The Promise".
(14:20) Zhang Weihua: What Lawyer Du means is that "Mantou" uses 90% of the stuff from "The Promise". Lawyer Wang said that "Mantou" only takes 10% of "The Promise" something. If it is an alternative evaluation, for example, if the entire film is copied and copied, my purpose is to criticize, and it is processed and produced, then it depends on the main purpose. If the purpose is to criticize, using this form of criticism, after all, requires a lot of his Lenses and pre-production technical means, so I feel that if you want to adopt this method, you need to apply the materials in front of you. If you don’t use this method, just pick one or two lenses and be done with it. It's a pity that Hu Ge didn't say that his "Steamed Buns" was a criticism, just an entertainment. Entertainment is still the most important thing.
(14:20) Wang Mingxi: The key point of this film is not mentioned, but judging from the overall facts, it is actually a criticism of "Wuji". Just in a humorous, witty way.
(14:20) Moderator: Some netizens raised a question. Shamelessness originally refers to morality. There is no law that stipulates that shamelessness is a crime.
(14:21) Zhang Weihua: Shamelessness is a kind of language. Language has both positive and derogatory connotations. How do you say shameless and obscene? Is it also the definition of morality? You say people are shameless, why do you say that? Shameless does not mean morality. In fact, expressing it in this language makes people feel uncomfortable and feels like a kind of personal harm to people. No one can accept the word shameless. If you say shameless words casually, you will feel that you are swearing.
(14:23) Du Haiyan: So the law must also protect you, because you have the right to personal dignity. If you violate my right to personal dignity, you must ask for legal protection.
(14:24) Moderator: Do you think this will become a landmark event, prompting the introduction of creative clauses?
(14:24) Zhang Weihua: The current fact is that it has attracted the attention of the media and triggered discussions in the legal community. Is the infringement significance of this incident very great? Can it become a historic event? , which can be proven through the passage of time.
(14:24) Moderator: Is there any legal requirement?
(14:26) Zhang Weihua: Teacher Du just said that the United States has precedents, but we belong to the civil law system and have a code of law. After this incident occurs, the national law enforcement agencies and courts have to compare it with the law to see whether this behavior constitutes an infringement. This is done in accordance with relevant laws and regulations. Whether specific behaviors constitute infringement, whether it is appropriate to entertain or criticize a certain work, and whether it is an infringement, the relevant departments or the Supreme People's Court will have some judicial interpretations to define this kind of behavior. There is no need to specifically legislate for it.
(14:26) Moderator: There is another special feature of this case. Chen Kaige and his wife have become American citizens. In the United States, it is natural for others to criticize public figures. What do you think?
(14:26) Du Haiyan: After all, we don’t know much about American laws. It is legitimate to criticize public figures in our country. Citizens have their own freedom of speech, and they have freedom of speech about people and things. . But it depends on what method is adopted and what means are used. This is the most important thing. Therefore, it is said that the task of criticizing the public in the United States is legitimate and does not conflict with our country's legal provisions.
(14:29) Zhang Weihua: In fact, Hu Ge did not criticize Chen Kaige. He only criticized this work, or used this work for entertainment activities. He did not criticize certain people, but only established the work he formed. Based on other people's works, this may cause infringement. It cannot be said that the fact of criticism is Chen Kaige. There is another problem. Regardless of whether he is Chinese or American, he has his own personality if he joins any nationality. If Chinese laws apply in China, when he gets to the United States, he may not be able to control him in China. I think any law should be consistent in protecting people's personality and human rights. But as a matter of freedom of speech, if it is not malicious criticism, I think it should be promoted. Without criticism, there will be no progress.
(14:30) Wang Mingxi: This incident itself occurred in China and has nothing to do with the so-called nationality of Chen Kaige and his wife. They are American nationals. However, this incident occurred in China and was brought to a Chinese court. China’s law.
(14:31) Moderator: I just mentioned the issue of prosecution. Some netizens believe that the copyright owner should prosecute the lawsuit himself. Chen Kaige is just a director and has no right to sue. The three of you think so. ?
(14:32) Wang Mingxi: It depends on the name of the lawsuit. If he sues, he certainly has the right to sue. If he sues for copyright infringement, the work itself is only the copyright and the director. Hu Ge himself did not infringe. Copyright. It may involve words about him, so it is still possible to sue for infringement of the right to name.
(14:32) Zhang Weihua: Chen Kaige said that from his point of view there is nothing wrong with suing because the producer is his wife. If you are not a legal person, you will not be as professional as us to analyze who sued this case. Maybe "The Promise" is the property used by the couple, and it is also the product of their hard work. Since the labor involved, I think it is understandable emotionally if I am the one who filed the complaint.
(14:33) Moderator: Some lawyers believe that there is a statement under Hu Ge’s video clip that the video is only for self-entertainment and is prohibited from dissemination.
(14:33) Zhang Weihua: Now it has actually spread on the Internet. If it is self-entertainment, staying at home and making slideshows by yourself, then it is self-appreciation. Infringement is not a matter of profit or loss. If it is produced, disseminated, or published, it must be approved by the copyright owner.
(14:33) Wang Mingxi: The language is used to entertain oneself, but the behavior is spread on the Internet.
(14:34) Host: Hu Ge himself said that making short films is for personal entertainment, recreation and enjoyment.
(14:34) Zhang Weihua: I think there is no need to decline. If you entertain yourself at home, no one else will know. The fact is that everyone knows.
(14:35) Wang Mingxi: Although it is said that he is amusing himself, his behavior is no longer self-amusing.
(14:36) Wang Mingxi: I don’t think Hu Ge needs to defend himself.
(14:37) Du Haiyan: Although he wrote it for his own entertainment, it was spread on the Internet and everyone knew it, which went against what he said. Again, the fact of infringement is not for profit.
(14:38) Moderator: Are there any specific legal provisions?
(14:39) Wang Mingxi: In order to introduce the evaluation of a certain type of works, it does not need to be for profit.
(14:41) Zhang Weihua: Now the facts are very clear. Maybe people sympathize with Hu Ge and find excuses for him from all angles. But the fact is very simple. After all, it is using other people's works to produce new works. No one can change this fact. As a legal fact, we must look at the most basic facts.
(14:41) Moderator: Some netizens on the Internet expressed sympathy for Chen Kaige. Many people think that "Wuji" made Hu Ge famous. What do you think?
(14:43) Zhang Weihua: I think Chen Kaige should thank Hu Ge. Maybe many people will watch "The Promise" in a few days. Everyone recognizes your work, and I should thank Hu Ge for this.
(14:44) Wang Mingxi: It was promoted through other channels. The purpose may not be this, but it achieves the effect of promoting "The Promise".
(14:44) Moderator: Hu Ge wrote his name at the end, is he also promoting himself?
(14:44) Wang Mingxi: It is a new work and enjoys copyright.
(14:44) Zhang Weihua: I think he dares to take responsibility.
(14:45) Moderator: Some netizens said that Hu Ge himself apologized to Director Chen. Can you predict Director Chen's next move?
(14:45) Zhang Weihua: I think Director Chen will forgive Hu Ge and not prosecute.
(14:45) Zhang Weihua: As a great director, I can be tolerant of others.
(14:46) Du Haiyan: If there is a lawsuit, according to the law, there is no need to apologize and eliminate the impact. But Hu Ge has already apologized to Director Chen. Everyone knows that Hu Ge has already apologized to Director Chen. The result has been achieved, so there is no need to sue again.
(14:46) Wang Mingxi: Legally speaking, there is no infringement. Emotionally speaking, Chen Kaige must have feelings. Hu Ge himself also apologized. This may be eliminated emotionally, and there is no possibility of prosecution. big.
(14:47) Moderator: It is said online that they have met, but no agreement has been reached?
(14:47) Zhang Weihua: Then I think we should compensate for the losses. Hu Ge is not for profit now and has no income. How can he ask for financial compensation from you?
(14:47)Wang Mingxi: First of all, he did not win. There is no way to calculate the income. According to the judicial interpretation issued by the Supreme Court of our country, according to the circumstances of the infringement, the amount of RMB 500 or more and 30 The amount of compensation shall be determined if the amount is less than 10,000 yuan, and the maximum shall not exceed 500,000 yuan.
(14:48) Du Haiyan: If there is no agreement, I don’t think it has anything to do with the economy. It’s just that in essence, maybe from Hu Ge, he still has doubts about whether he infringes the law or not. Legally speaking, will I infringe the rights? Maybe Hu Ge has not considered my infringement, so I apologize to you. The two did not reach an agreement without resolving the substantive issues.
(14:53) Moderator: Some netizens said that if this lawsuit breaks out, what will happen?
(14:53) Zhang Weihua: According to legal procedures, this will not happen.
(14:54) Du Haiyan: It’s hard to say. What we know now from various channels, the real facts we have are not necessarily the facts. It depends on the court’s need for evidence. The need for facts makes it difficult to predict the outcome.
(14:54) Zhang Weihua: It’s nothing more than what will be the result if Chen Kaige wins, and what will be the result if Hu Ge wins. Will this create a pattern in the future? If the court rules that this behavior is illegal, I am afraid that this form of online behavior may decrease in the future, or the method may change. It is impossible to eliminate this fact. Because the Internet is too developed, the state should guide it.
(14:55) Wang Mingxi: Now the country has no way to control the Internet, and the spread speed is very fast. If it is really malicious, it will not work without signature. As for this case, I don’t think the probability of Chen Kaige winning is very high.
(14:55) Du Haiyan: I think the probability of Chen Kaige winning the case is relatively high. According to the regulations of our country, the copyright law that has been implemented has stipulated several rights. Judging from the facts we have, I think every citizen has freedom of speech, but it must be exercised within the framework stipulated by the state. It cannot be because Hu Ge did not infringe Chen Kaige's rights because of Chen Kaige's copyright. The rights of other people, such as Chen Hong's performance rights, copyrights, etc., their rights have greater legal certainty. Especially the performance rights are very obvious. If you take it out and spread it through the Internet without their permission, this constitutes infringement. So I think the chances of winning are relatively high.
Because Chen Kaige was involved in this incident, Hu Ge's title has been labeled as director Chen Kaige, which proves that his right of authorship has been maintained.
(14:56) Zhang Weihua: I think it’s 50 each. When the state makes a judgment, it must consider the issue of social effects. Therefore, when using this method to evaluate whether a work is legally recognized, one should not only look at the surface. Using things from his works to form a new work can play a very good role in the development of culture in the future, and the practical significance should be considered.
(14:57) Moderator: What else do you have to say to netizens who are very concerned about this matter?
(14:59) Zhang Weihua: "Steamed buns" are still very popular. It has promoted the popularization of copyright knowledge, which is a good thing for all parties. Second, the wishes of most netizens are good, and after all, they represent the interests of the majority of people. I think the interests of the majority should always be considered. This steamed bun incident is a good thing and an improvement for everyone. In the future, when everyone does something, they can think twice before doing it, whether they should do it or not, and whether they should say it this way. Through this matter, it will play a role in promoting the culture of our country. I think our country should have a diverse culture. Only a diverse culture can the people fully enjoy it. If mainstream culture cannot represent the voice of the people, I think it would be better for this mainstream culture to be more critical.
(14:59) Host: Thank you to the three experts for their views today. Today’s program will be over soon. Netizens can continue to ask questions on our website, and the three experts can also answer them online.