In the mobile Internet era, many people will have the habit of posting a beautiful photo to their WeChat Moments or Weibo, but they do not know that this behavior may infringe on others' copyrights. The well-known artist Chen Kun was sued for infringing copyright for posting a landscape photo taken by others on a social platform.
Sometimes, the Beijing Internet Court made a first-instance judgment on the dispute case of photographer Chu Weimin suing Chen Kun and Beijing Weimeng Chuangke Network Technology Co., Ltd. (hereinafter referred to as Weimeng Chuangke Company) for infringing on the information network dissemination rights of works, and found that Chen Kun posted the copyrighted photography work "Moon Sea Like Dreams" (hereinafter referred to as the work involved) by Chu Weimin on the social platform "Oasis" operated by Weimeng Chuangke Company, and shared it on Weibo, as well as the behavior of Weimeng Chuangke Company forwarding Chen Kun to post the above content link and not signing Chu Weimin, which infringes on Chu Weimin's right to disseminate information network dissemination rights of Chu Weimin for the work involved. The infringement must be stopped, and economic losses must be compensated and public apologized respectively.
After the judgment of this case was made public, it quickly triggered discussions on the protection of copyright of photography works on the Internet. Most netizens expressed support for the photographer's rights protection, believing that the completion of a beautiful photo requires the photographer to put in a lot of effort. It is disrespectful to the original author when publishing other people's works at will; but many netizens also raised questions: If it is published only out of the preference for the photos, and not being used for commercial use constitutes infringement? If it is only published to a relatively closed platform like WeChat Moments, will there be copyright risks? The reporter interviewed industry insiders on these issues.
posted photos and led to lawsuits
Born in 1990, Chu Weimin is a well-known landscape photographer with a number of millions of fans. By chance, he discovered that Chen Kun posted his own filming works involved in the case on the "Oasis" APP and synced the photos to the Weibo platform. Later, he also discovered that Weimeng Chuangke Company reposted Chen Kun's content through its Weibo account "Oasis", with the caption "Brother Kun, come to Oasis". However, neither signed it. After the communication was fruitless, Chu Weimin sued Chen Kun and Weimeng Chuangke Company to the Beijing Internet Court, requesting the court to order the other party to stop infringement, compensate for economic losses, and publicly apologize.
Chen Kun and Weimeng Chuangke Company both denied the infringement of Chu Weimin's lawsuit, and their defenses were mainly for the reasonable use of the acts such as publishing and forwarding of works involved. Chen Kun argued that first of all, his use of the works involved was for personal appreciation and was reasonable use; secondly, there is a correlation function between the "Oasis" software and the Weibo software, and the content published on the Oasis platform will be automatically synchronized to Weibo by default. He did not notice the function setting when publishing the news, and he deleted the works involved in the case in time after receiving a notice from Weimeng Chuangke Company. Weimeng Chuangke Company argued that first, forwarding the original Weibo and making comments is a basic way for Weibo users to communicate and interact on the Weibo platform. The "Oasis" Weibo account forwarded Chen Kun's account's Weibo and made text comments, in order to explain the fact that "Chen Kun posted a news in 'Oasis'". The forwarding behavior of the "Oasis" account is reasonable use. Secondly, "Oasis" did not mention any content about the work involved when forwarding Weibo, which will not make people mistakenly believe that the copyright owner of the work involved is Chen Kun or "Oasis", and will not affect the normal use of the work involved and damage the legitimate interests of the plaintiff.
After trial, the Beijing Internet Court made the above first-instance judgment a few days ago, and determined that Chen Kun and Weimeng Chuangke Company had infringed on the rights and ruled that Chen Kun and Weimeng Chuangke Company compensated 2,590 yuan and 2,550 yuan respectively for economic losses and reasonable expenses.
For this case, Chu Weimin told our reporter that the purpose of filing the lawsuit was to arouse public respect for the rights and interests of photographers. If Chen Kun posted photos out of his personal preference for the photos, he would not file a lawsuit, but Chen Kun posted photos suspected of promoting the "Oasis" APP and had obvious commercial intentions.In addition, Chen Kun made significant color adjustment changes when publishing the work involved, which was suspected of deliberately covering up the original picture and preventing the identification of the plagiarism check software.
As for the first-instance judgment, Chen Kun and Weimeng Chuangke Company expressed dissatisfaction and had filed an appeal. Chen Kun's lawyer stated that it was not convenient to accept the interview for the time being.
There are requirements for rational use of
The reporter learned in the interview that Chu Weimin's experience is more common in the ranks of photographers. In these cases, the infringing parties are mostly defending on the grounds of non-commercial use and reasonable use. In this regard, many netizens also proposed that the posting of relevant pictures on public social platforms such as Weibo is only out of love. In this case, can it constitute reasonable use? Compared with public figures, the number of fans and communication capabilities of ordinary users is relatively limited. Will the court consider this factor when hearing such cases?
In this regard, Xiong Qi, vice dean of the School of Law of Huazhong University of Science and Technology, told our reporter that the law’s determination of copyright infringement strictly adheres to the criteria for determining general infringement, supplemented by the special requirements in the field of copyright in determining subjective faults, but will not differ due to the identity of the defendant. Internet users publish other people's photography works on social networks without permission, which generally cannot be regarded as reasonable use, but rather as information network dissemination behavior stipulated by Copyright Law. The reason why users can forward and share more freely on platforms such as Weibo and WeChat is that when users register the social network platform account, they have agreed to the platform's user agreement and permit the content they upload to be spread by others on the platform. However, disseminating works outside of this social platform is generally considered infringement.
Zhai Wei, executive director of the Competition Law Research Center of East China University of Political Science and Law, agreed with this and added that since the social platform accounts of well-known artists have significant commercial value and advertising media functions, except for statutory licenses and reasonable use, the behavior of well-known artists using other people's pictures in social platform accounts is suspected of illegal for-profit use and is suspected of falling into the scope of copyright infringement. There are many situations for reasonable use, such as appropriate quoting pictures of others in order to introduce, comment on a certain work or explain a certain issue. In addition, given the wide impact and serious harm of infringement of public figures, courts usually examine whether public figures fully fulfill their obligation to infringe copyrights with stricter standards when hearing such litigation.
As for whether the platform can constitute a reasonable use in such cases, Xiong Qi and Zhai Wei both believe that when the platform users constitute infringement of other people's copyrights, if the platform lacks effective review in advance or does not take prompt disposal measures afterwards, the platform shall bear corresponding legal liability for the user's copyright infringement. On the contrary, if the platform has fully fulfilled the platform's governance obligations and review responsibilities through the full-chain review method of pre-, during and after-event review, and has tried its best to prevent copyright infringement by platform users or stop the impact of copyright infringement by platform users, then the platform generally should not bear legal liability for copyright infringement by platform users. In addition, it is worth noting that if the platform user commits copyright infringement and requires the platform to provide user identity information in the court, but the platform cannot determine or submit the real identity information of the platform user, then the platform generally cannot be exempted from liability.
Holding on WeChat
Different social platforms have different openness. For example, Weibo is more open than WeChat public accounts, while WeChat Moments is relatively private. So, is it infringement to publish other people's photography works through WeChat Moments without authorization?
In this regard, Zhai Wei said that if the social platform becomes more open and the number of audiences is larger, the platform and platform users should bear the obligation of caution with higher standards. Although WeChat Moments is relatively private, in special circumstances, there is still a risk of infringement for WeChat users to post pictures of others without authorization on WeChat Moments.The main reasons are as follows: On the one hand, if a WeChat user's WeChat circle friends are professionals in a certain industry or field, then the image may have widespread dissemination and influence in related industries and fields; on the other hand, once a WeChat user uploads infringing pictures on his Moments, he will no longer be able to control the range of forwarding and dissemination of the image, and may eventually have a wide impact on the entire network.
Xiong Qi also said that although Weibo and WeChat Moments have different degrees of openness, they are basically social networks composed of unspecified people, and the communication behaviors in them are difficult to be regarded as private copying and fall into the scope of reasonable use. Only when users post photos of others in WeChat groups with very limited numbers such as family groups can they be regarded as reasonable use, but this still cannot conflict with the normal use and reasonable benefits of the work.
"From the above, it can be seen that the social networks of public figures are mostly responsible for the operation of brokerage companies and behind-the-scenes teams. This requires strict review of the source of the work, clarify the ownership of rights, and avoid infringement." Xiong Qi suggested that this pre-review not only avoids infringement, but also maintains the image of public figures.
Copyright pictures embody the creator's efforts and are the crystallization of the fruits of his intellectual labor. If the user uses it at will without permission, there is a risk of infringement. Respect copyright, start with you and me. The whole society should work together to build an orderly, benign and healthy image copyright protection environment. (Jiang Xu)
