The Intellectual Property Case Represented by Mr. He Xiaolong and Mr. Liang Weisen Was Listed in the Top 10 Innovative Cases of Judicial Protection by Beijing High Court

  Recently, Beijing Higher People's Court released the top 10 innovative cases of judicial protection of intellectual property rights for 2017. The copyright infringement dispute case of "photo of left-behind children" represented by Nuoheng attorneys He Xiaolong and Liang Weisen was selected.

Comments on innovation: This case clarifies the criteria for the determination of "fair use" and establishes that the distributor, without fault, is not liable for infringement of the right of authorship for the use of unattributed photographic works in the film or television work distributed by the distributor. Under the Copyright Law of China, fair use includes "appropriately quoting from another person's published work for the purpose of introducing, commenting on or explaining a certain work", and the purpose of such use can be either public welfare or commercial in nature. In determining whether the use of another person's work is an "appropriate quotation", it should be considered from the perspective of whether the use of the work affects the normal use of the work and whether it unreasonably harms the legitimate interests of the copyright owner. In addition, from the perspective of the legislative purpose of copyright, the protection of the right of authorship is to indicate the identity of the author and to highlight the relationship between the author and the work, and the author's right of authorship should be protected when the work is used by others. However, once a work has been used to produce a cinematographic work or a work created by a method similar to cinematography, the subsequent distributor of such a work shall not be held legally liable for infringement of the right of authorship by others based on his or her mere act of distributing the work without knowing or having reasonable grounds to know that the work he or she distributes infringes on the right of authorship. The law protects the copyright of a work in order to encourage the creation and dissemination of the work, and should take into account both the interests of encouraging creation and encouraging dissemination in the protection of copyright. This case is of great significance as a guide for similar cases.