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Beijing Higher People's Court
civil judgment
(2005) Gao Min Zhong Zi No.539
Appellant (plaintiff in the original trial) Zhuang Yu, female, Han nationality, born on August 65, 438+0. 979, is a freelancer and lives in You 'anmen West Street, Xuanwu District, Beijing.
Authorized Agent: Xing Fenghua, lawyer of Guangdong Jiangshan Hong Law Firm Beijing Branch.
Appellant (defendant in the original trial) Jing M.Guo, male, Han nationality, born on June 6th, 1983, a student of Shanghai University, lives in Huayuan Road, Gongjing District, Zigong City, Sichuan Province.
Authorized Agent: Wu, lawyer of Beijing Xindali Law Firm.
Authorized Agent: Ding Qian, lawyer of Beijing Xindali Law Firm.
Appellant (defendant in the original trial): Feng Chun Literature and Art Publishing House, whose domicile is No.25, Shiyiwei Road, Heping District, Shenyang City, Liaoning Province.
Legal Representative: Han Zhongliang, president.
Authorized Agent: Liu Lei, lawyer of Beijing Shi Lan Law Firm.
Authorized Agent: Chen Guang, lawyer of Liaoning Haoxing Law Firm.
The defendant in the original trial, Beijing Book Building Co., Ltd., has its domicile at No.0/7, West Chang 'an Street, Xicheng District, Beijing.
Legal representative: Lu Jiemin, chairman of the board.
Authorized Agent: Li Long, male, Han nationality,1born on August 2, 964, deputy manager of the business department of Beijing Book Building Co., Ltd., living at No.402, Gate 5, North Building, Madian Telecommunication Bureau Dormitory, Haidian District, Beijing.
The appellant, Jing M.Guo and Feng Chun Literature and Art Publishing House (hereinafter referred to as the Publishing House) refused to accept the civil judgment of Beijing No.1 Intermediate People's Court (2004) No.47, and appealed to our court. After accepting the case on March 23, 2005, our hospital formed a collegial panel according to law and heard the case in public on June 23, 2005 on 2 1. Xing Fenghua, the entrusted agent of Appellant Zhuang Yu; Jing M.Guo, the appellant of the original trial, was entrusted with Ma Xiaogang and Li Teng; Appellants: Chen Guang and Liu Lei, entrusted agents of Feng Chun Publishing House; Li Long, the entrusted agent of Beijing Book Building Co., Ltd. (hereinafter referred to as Book Building Company), attended the lawsuit in court. The case has now been closed.
Beijing No.1 Intermediate People's Court confirmed that the novel Inside and Outside the Circle (hereinafter referred to as "The Circle") was published on Tianya Community website on August 4, 2002. In February 2003, The Circle was published by China Federation of Literary and Art Circles Press, and the copyright page was signed by Zhuang Yu. The circle focuses on the emotional experience of the protagonist Chu Xiao, her current boyfriend Gao Yuan and her ex-boyfriend Zhang Xiaobei. While describing the love life and conflicts between Chu Xiao and Gao Yuan, it also describes the emotional entanglements between Chu Xiao and Zhang Xiaobei. At the same time, it also describes the married life of Li Qiong and his friend, his extramarital affair with Zhang, his sexual relationship with Zhang and their cooperation in filming. On August 6th+9th, 2003, Jing M.Guo signed a book publishing contract with Feng Chun Publishing House to publish Jing M.Guo's Dream. In June 2003, Jing M.Guo's Dream was published by Feng Chun Publishing House. "Dream" focuses on the emotional experience of the protagonist Lin Lan, her current boyfriend Xu Lu and her ex-boyfriend Gu Xiaobei. While describing the love life and conflicts between Lin Lan and Lu Xu, it alternately describes the emotional entanglement between Lin Lan and Gu Xiaobei, the emotional experience between Gu Xiaobei and his current girlfriend Angel Yao, the friendship between Lin Lan, Wen Jing and He Wei and matches, and their conflicts with Li Mouli.
The Beijing No.1 Intermediate People's Court held that the conception and language style of the work did not belong to the "expression" of the work, and Zhuang Yu argued that Jing Ke Guo violated the original conception and language style of his work, which was unfounded in law and was not supported. Zhuang Yu accused Jing M.Guo's works of infringing on the characteristics of the main characters, making their images unclear. This general description of the character's characteristics can not highlight the character's characteristics, nor is it enough to make the character's characteristics itself an expression protected by copyright law. Therefore, Zhuang Yu claims that Jing M.Guo's infringement of the copyright of the main characters in his works cannot be established and is not supported. Judging from the relationship between the characters in the two novels, the relationship between Yao Shanshan and Yu in Dream is a replica of that between Zhang and Yu in Circle, and the relationship between Yao Shanshan and Yu in Dream is a reappearance of that in Circle. The relationship between Lin Lan and Gu Xiaobei in Dream is similar to that between Chu Xiao and Zhang Xiaobei in Circle, and so are the matches in Dream and Circle. When Jing M.Guo wrote Dream, he plagiarized the description of the relationship between the main characters in The Circle, which infringed the copyright. The original story should be protected by copyright law. Zhuang Yu listed 12 main infringement plots in Dream, which are the same as or similar to the corresponding plots in Zhuang Yu's Circle. Since The Circle was published before The Dream, it can be inferred that Jing M.Guo had contact with Zhuang Yu's The Circle. In the case that 12 main plots in the two works are the same or substantially similar, it is considered that the above plots in the dream originated from the circle, which constitutes an infringement of Zhuang Yu's copyright. Among the general plots and sentences of infringement in Dream listed by Zhuang Yu, * * * has 57 similarities or similarities. Jing M.Guo argued that the above-mentioned plots and statements were not original, or were different or similar, but he did not provide evidence to prove them, which did not support his claim. Therefore, it is considered that the same or similar plots and sentences mentioned above are from Zhuang Yu's work The Circle, which constitutes an infringement of Zhuang Yu's copyright. Other identical or similar general plots and sentences listed by Zhuang Yu are either not original, different or similar, or have no corresponding comparative content, or have already appeared in the listed main plot infringement facts. Therefore, Zhuang Yu's accusation that this part of "Dream" infringes the copyright of the circle is unfounded and will not be supported. Although Zhuang Yu claimed in the complaint that Dream violated the main clue of A Round Story, he did not provide evidence for it in the lawsuit, so he did not support it. To sum up, Jing M. Guo plagiarized the relationship between characters in the circle and the original content of some plots and sentences in his work Dream without permission, which led to the substantial similarity between Dream and Circle as a whole and infringed the copyright, and should bear civil liability for stopping the infringement, apologizing and compensating for the losses. Feng Chun Publishing House failed to fulfill its duty of reasonable care, which led to the publication of the infringing work Dream, and its behavior was at fault. In addition to the civil liability of stopping the infringement and apologizing, Feng Chun Publishing House should also be jointly and severally liable for compensation with Jing M.Guo. The infringing books sold by Book Building Company are all purchased from the regular book wholesale market, and the purchase channels are legal and there is no fault. Should not be liable for compensation, but should be responsible for stopping the sale of infringing books.
2 Jing M.Guo plagiarism final judgment (reposted)
As for the amount of compensation, since Zhuang Yu did not submit evidence of its economic losses or the illegal gains of Jing M.Guo and the publishing house, the court comprehensively considered the fault of Jing M.Guo and the publishing house, the remuneration obtained by Jing M.Guo and the profits that the publishing house might obtain due to infringement. Zhuang Yu did not provide evidence to prove that the infringement involved caused mental damage and serious consequences, so his claim for compensation for mental damage was not supported. Zhuang Yu's claim for compensation of 20,000 yuan in legal fees was not supported because it did not provide relevant evidence of legal fees. The Beijing No.1 Intermediate People's Court ruled: 1 in accordance with the provisions of Item (5) and Item (2) of Article 46 of the Copyright Law of People's Republic of China (PRC) and Item (1) and Item (2) of Article 20 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Copyright Civil Disputes. Jing M.Guo and the publishing house immediately stopped the infringement, that is, stopped the publication of How Many Flowers Fall in a Dream; Two, Jing M.Guo, publishing house * * * compensation for economic losses of 200 thousand yuan in Zhuang Yu; 3. Jing M.Guo and Feng Chun Publishing House publicly apologized to Zhuang Yu in China Youth Daily; Four, the book building company stopped selling the book "How many flowers fall in a dream"; Five, reject Zhuang Yu's other claims.
Refused to accept the judgment of first instance, filed an appeal on the grounds that: 1, Jing M. Guo and Feng Chun Publishing House had serious infringement circumstances, huge circulation of works and long duration of infringement. After the incident, they made a lot of hype in the major media all over the country, which caused serious adverse effects to the plaintiff in society. Because of the deep fault caused by the infringement and huge profits, the compensation amount should be determined by the upper limit of the legal compensation amount; 2. The appellant and the entrusted lawyer charge according to the risk agency law, so they can't provide valid evidence of lawyer's fees on the spot. If the appellant wins the case, the expenses will inevitably occur, and the first-instance judgment will not be supported on the grounds that the relevant evidence of attorney fees has not been provided, which is unfair. 3. The infringement facts of Jing M.Guo and the publishing house will inevitably bring serious mental pain to the appellant. If the burden of proof on the appellant's inner feelings and mental pain is assigned to the appellant, it is obviously difficult and does not conform to the rules of evidence; As a kind of thinking activity, conception itself is not protected by copyright law. However, because each literary work has its own different conception activities, these conception results are finally displayed and expressed in the works through their own different plots, that is, the layout and framework of the works. The result of the conception is an overall review of the infringement, which is of special significance to the copyright protection of literary works, and the appellant's relevant claims should be supported. Therefore, it is requested to revise the second item of the first-instance judgment and order Jingguo and the publishing house to compensate the appellant for economic losses of 500,000 yuan; Jing M.Guo and the publishing house were ordered to compensate the appellant for mental damages 1000 yuan and the lawyer's agency fee of 20,000 yuan.
Jing M.Guo refused to accept the judgment of the first instance, and appealed on the grounds that Dream was an independent work created by the appellant, and there were no substantial similarities in the main characters, plot and language between Dream and Yuan. The evidence of the three schedules on which the first-instance judgment finds the facts can not only prove the conclusion of the first-instance judgment, but also prove that the two works involved are different in expression. The judgment of the first instance arbitrarily protected the common plot materials and popular language that existed in real life as the works created by the plaintiff, just because they were all reflected in the works of the original defendant, which violated the basic objective facts. Copyright law protects the expression of works, not the ideological content of works. The first-instance judgment extends the protection scope of copyright law to the ideological content and public sphere of works, which is a misunderstanding and application of the law, will seriously damage the creation and dissemination of literary and artistic works and violate the legislative purpose of copyright law. Therefore, it is requested to revoke the original judgment, send it back for retrial or change the sentence according to law.
Feng Chun Publishing House refused to accept the judgment of the first instance and appealed on the grounds that: 1, our publishing of Dream fulfilled the duty of examination and attention in strict accordance with the Copyright Law, the Regulations on the Administration of Publishing and other laws and regulations, and found nothing prohibited by laws and regulations, and there was no other evidence to show that the work was infringing, which met the publishing conditions. This institution has done its duty of reasonable care without fault and should not be held responsible; 2. Joint liability shall be directly stipulated by law or stipulated in the contract. The legal provisions cited in the first-instance judgment did not stipulate that the publishing house should bear joint and several liability for compensation. Therefore, the first-instance judgment that the cooperative bears joint and several liability is unfounded in the law and belongs to the error of applicable law; 3. Apologizing refers to the civil liability after causing damage to others' personality and spirit. Because the first-instance judgment did not find that it caused mental damage to the plaintiff in the original trial, the agency should not apologize to it again; 4. Dream is a work independently created by Jing M.Guo, and enjoys copyright according to law. Copyright law protects the originality of works. Even if two works are the same or similar, as long as they are created independently, they cannot be regarded as plagiarism. Therefore, I request that the original judgment be revoked according to law.
3 Jing M.Guo plagiarism final judgment (reposted)
Book Building Company abides by the judgment of first instance.
It was found through trial that:
On August 4th, 2002, Zhuang Yu published the novel "Circle" on Tianya community website (website:/s/blog _ 670834b00100lbck.html).
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