Hotspot · Analysis

Recently, the website of the Supreme People's Court has released a number of typical cases of film intellectual property protection, including criminal cases and civil cases, involving the theft and dissemination of cinema films, protection of the integrity of works, adaptation rights, information network dissemination rights, fair use of copyrights, and protection of commercial secrets. The second case, Liang Mouping's infringement of copyright crime case [Shanghai Third Intermediate People's Court (2021) Hu 03 Xing Chu 101 Criminal Judgment], is a well-known copyright infringement case in the industry by the "Renren Film and Television Subtitle Group".

Since 2018, the defendant Liang Mouping instructed Wang Mouhang and others to develop and operate the "Renren Film and Television Subtitle Group" website and Android, iOS, Windows, MacOSX, TV and other clients, and instructed Xie Mouhong and others to download unauthorized film and television works from overseas websites, translate, produce, and upload them to relevant servers, and provide users with online viewing and downloading through the "Renren Film and Television Subtitle Group" website and related clients they operate. There are a total of 32824 unauthorized film and television works on the "Renren Film and Television Subtitle Group" website and related clients, with a total membership of about 6.83 million people and an illegal business amount of over 12 million yuan.

After trial, the Third Intermediate People's Court of Shanghai found that the defendant Liang Mouping, for the purpose of profit, copied and distributed other people's works without the permission of the copyright owner, and had other particularly serious circumstances, which constituted the crime of copyright infringement. Liang Mouping was sentenced to three years and six months in prison, fined RMB 1.5 million, and the illegal gains were recovered. After the verdict was pronounced, all parties did not appeal or protest, and the first instance judgment has taken legal effect.

This case involves numerous film and television works with scattered rights holders. The investigating authorities have meticulously clarified the conditions for the application of the "safe harbor rules", "substantive similarity", and the hierarchical classification and handling of the involved personnel. They have severely cracked down on criminal acts that seriously infringe on film copyright, which has certain guiding significance.

1. Applicable conditions for the "Safe Harbor Rules"

The "safe harbor rule" usually refers to the right holder discovering that network users have infringed their legitimate rights and interests by using network services, and after sending a notice to the network service provider, the network service provider takes necessary measures in a timely manner, and does not bear infringement liability. The defendant in this case claims based on this rule that there is no subjective intention to infringe on copyright, and thus proposes a defense that it does not constitute a crime. In this regard, the procuratorial organs have accurately grasped the conditions for the application of the "safe harbor rules", focusing on the following two aspects to examine and determine whether their innocence defense is valid: first, to examine the source of infringing works. The organization of online service providers to upload infringing works constitutes a direct infringement of information network dissemination rights and is not subject to the "safe harbor rules". The second is to examine whether the network service provider is aware of the infringement when online users upload infringing works. If there is evidence to prove that the internet service provider subjectively allowed internet users to upload their works even though they knew they were infringing, or did not take necessary measures, they should be deemed to have subjective intent, and their innocence defense is not valid.

How to identify "substantial similarity"

The number of works and dramas involved in this case is over 32000, including multiple genres such as movies and TV dramas, involving numerous foreign rights holders. It is difficult and time-consuming to find the rights holders to issue unauthorized certificates one by one. The procuratorial organs suggest that the public security organs adopt a sampling appraisal method by appraisal institutions, combined with the appraisal opinions of the rights holders, to comprehensively determine whether the involved film and television works and the rights holder's works constitute substantial similarities. In specific operations, according to certain standards, such as the characteristics, types, sources, and modus operandi of film and television works, the involved works are divided into multiple non repetitive categories as a whole, and then randomly sampled from each category. On this basis, the suspect will be informed of the sampling method, identification and identification method and identification opinions, and will listen to the opinions. After examination, if the identification opinion meets the legal requirements, it can be used as evidence.

3. How to classify and categorize the numerous individuals involved in the case

This case involves a large number of personnel, precise division of labor, and a complex structure. In the process of handling cases, the investigating authorities strictly implement the criminal policy of combining leniency and severity, and classify the objects according to the status, role, degree of participation, subjective malignancy, and other factors of the involved personnel in the joint crime. For those who have the intention to initiate crimes, lead the distribution of interests, organize management platforms, or play a major role in joint crimes, key crackdowns will be imposed and strict investigations will be carried out; For other individuals involved in a joint crime who have a lower level of participation and are employed to commit the crime, they can be identified as accomplices and may be given lenient treatment as appropriate; For temporary recruited personnel, if the intention of accomplice is weak, the circumstances are minor, and the harm is not significant, comprehensive consideration of the handling effect may be given, and criminal responsibility may not be pursued.

Industry · New Policies

In January 2024, the State Administration of Radio, Film and Television issued the "Quality Management Measures for Radio, Television and Network Audiovisual Statistics Data"

This management method is applicable to the statistical activities of the broadcasting and television industry, which are investigated, collected, organized, researched, and provided by the competent department of broadcasting and television in accordance with the law, including statistical data on broadcasting and television and online audiovisual program services (including big data statistical data). Among them, it is required that broadcasting, television, and network audiovisual related enterprises should develop electronic statistical ledger work rules and accounting methods in accordance with the unified provisions of the national statistical survey system, combined with the characteristics of the enterprise's own industry and the actual situation of information management. They should keep accounts in a timely manner and rely on the electronic statistical ledger to submit statistical reports, striving to achieve the connection between the original records of the enterprise, the electronic statistical ledger of the enterprise, and the statistical reports.

Any unit or individual who fails to establish and improve the quality management responsibility system for broadcasting, television, and network audiovisual statistical data in accordance with the Management Measures, resulting in significant errors in statistical data, shall be held responsible in accordance with relevant laws and regulations such as the Statistics Law of the People's Republic of China and the Implementation Regulations of the Statistics Law of the People's Republic of China.

2. The China National Intellectual Property Administration issued the Provisions on the Registration and Administration of Collective Trademarks and Certification Trademarks on December 29, 2023, which will come into force on February 1, 2024

This management regulation is formulated in accordance with the provisions of the Trademark Law of the People's Republic of China and the Implementation Regulations of the Trademark Law of the People's Republic of China, in order to standardize the registration and use management of collective trademarks and certification trademarks, strengthen the protection of trademark rights and interests, safeguard social public interests, and promote the development of characteristic industries.