Original link: https://www.williamlong.info/archives/6854.html
In recent years, the state has paid more and more attention to the protection of intellectual property rights. This measure, which was originally beneficial to the country and the people, has been used by some companies wandering in the gray area as an excuse to “touch porcelain to protect their rights”. It is reported that the “civil complaint” sent by these companies to each defendant is almost from the same template and is “produced” in batches. For a picture, the compensation amount is 7,000 yuan + 3,000 yuan for attorney fees, totaling 10,000 yuan.
It is understood that the price of a paid picture on the market is currently between 200 yuan and 800 yuan, and a picture used as a magazine cover is sold for 1,000 yuan. However, in multiple judgment documents, the companies demanded compensation ranging from 6,000 yuan to 10,000 yuan for a single photo.
This kind of behavior that seeks illegitimate interests by means of forced buying and selling, such as fishing, touching porcelain, setting traps, malicious litigation, etc., wastes the respondent’s manpower, time resources, and occupies court litigation resources, manpower and time resources, and should be morally condemned and legal sanctions.
If the company encounters such a lawsuit, turn it over to the company’s legal department.
If an individual self-media author encounters such a malicious lawsuit, here are some basic countermeasures.
1. Verify the basic situation
After receiving the relevant information, verify it as soon as possible, and delete the target image or page as soon as possible regardless of whether the image is infringing. The reason for this is to reduce the motive for infringement lawsuits. If it is really rights protection, the main purpose should be to delete the infringing information. In addition, if the litigant does not notarize the webpage, the other party will not be able to provide legal evidence of infringement after deletion.
2. Don’t settle, insist on court proceedings
The business of such “touching porcelain rights protection” companies basically relies on settlement fees and winning fees to make money. Usually, most companies will be afraid of trouble and directly choose to settle and pay the relevant fees. For personal self-media, Don’t be afraid of trouble, resolutely refuse to settle, insist on court proceedings. Usually, this kind of company adopts “casting a wide net, collecting more fish, and choosing the best to follow”. The number of cases will be a huge number, and the cost of corporate lawyers will increase exponentially, so a large number of cases have to be abandoned. Therefore, for individuals, if they persist until the end, the other party often withdraws the case directly.
3. Court defense
The defense in court can be based on several aspects:
Infringement evidence, infringement evidence should be submitted by the plaintiff, and the defendant does not bear the burden of proof. All evidence must be notarized by the plaintiff, which will increase the plaintiff’s litigation costs.
Safe Harbor Principle: For network service providers that provide network platforms, they can defend themselves through the safe harbor principle. The “safe harbor” principle means that when a copyright infringement case occurs, when the network service provider only provides space services and does not produce web content, If the ISP is notified of the infringement, it is obliged to remove it, otherwise it is considered an infringement. No liability for infringement is assumed if the infringing content is neither stored on the ISP’s servers nor informed about which content should be removed.
In the case of cost, it means that it does not recognize the price of the other party, but only the market price. The general market price may be less than 300 yuan. For attorney fees, it can be said that the case is simple and there is no need to pay high attorney fees. If the other party does not provide the agency contract and attorney fee invoice, the attorney fee is not paid. Therefore, the claim of rights protection cost does not exist.
All in all, these so-called graphic companies are taking advantage of legal loopholes to touch porcelain. The purpose of such companies is to earn customer compensation and extort money. Therefore, this is a business. For him, money is the first priority. Therefore, he must not reconcile and let the company spend a lot of time and energy and retreat in spite of difficulties.
Appendix: Sample Reply to Appeal
Reply to Appeal
(1) Whether the plaintiff has the right to claim the rights
The plaintiff must have the copyright and likeness authorization to have the right to initiate a lawsuit. In view of the fact that the plaintiff did not provide relevant supporting documents, the plaintiff should provide supplementary evidence based on the principle of whoever claims the evidence.
The following is a detailed explanation:
Regarding this case, the evidence provided by the plaintiff and the work registration certificate provided by the Beijing Copyright Bureau cannot fully prove that the plaintiff has the right to initiate a lawsuit.
According to Article 2 of the “Trial Measures for Voluntary Registration of Works”: “Works are subject to voluntary registration. Whether the work is registered or not, the copyright obtained by the author or other copyright holders in accordance with the law will not be affected.” The work registration certificate can only prove that the plaintiff has only done the process of registration, and does not mean that he is the copyright owner and has the right to use the portrait right. According to legal logic, our company can also declare that we own the copyright of a picture work, but it has not been registered; therefore, there is a legal loophole in the copyright to prove the ownership based on the work registration certificate.
At the same time, the allegedly infringing image was simply searched on Baidu to find that other online image sales platforms own the copyright of the image (refer to the screenshot of the suspected infringing image search); it can be proved that the plaintiff does not necessarily own the exclusive copyright, and strictly reviewed in accordance with the Supreme Law It is suggested that the judge accepting this case should re-examine the rights of the works.
As stated in the plaintiff’s complaint, the plaintiff is a top picture manufacturer in China, a core supplier of major domestic picture sales platforms, and also has a work registration certificate. The plaintiff should provide the following documents to support the claim:
1. The identity document of the photographer or the certificate of the author of the picture (the author’s signature is required) 2. The document of the attribution of the picture work
3. Portrait Rights License Agreement (within the validity period)
4. Original film or original digital file of the picture
5. Documents proving the originality of the photo work and the creation process
6. The completion time of the work, and indicate whether the supporting documents are independently completed (the above are only the process documents for the registration of some pictures of the “Trial Measures for Voluntary Registration of Works”)
(2) Whether the defendant has infringed
The plaintiff must have the copyright and likeness authorization to have the right to initiate a lawsuit. In view of the fact that the plaintiff did not provide relevant supporting documents, the plaintiff should provide supplementary evidence based on the principle of whoever claims the evidence.
Whether the picture of the defendant and the picture of the plaintiff are the same picture, the plaintiff is required to present a legally valid picture consistency appraisal certificate.
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