YANG JIKANG V. SUNGARI INTERNATIONAL AUCTION CO.,
LTD. (2013) EZBZ No. 09727, Beijing No. 2 Intermediate People’s
Court
Cause of action: Dispute over preliminary injunction in a
copyright infringement
Collegial panel members: Zhang Jian | Yang Jing | Liu Juan
Keywords: auction, copyright, letters, real right, pre-action
injunction, privacy right
Relevant legal provisions: Civil Procedure Law of the People’s
Republic of China (as amended in 2012), articles 100, 101 and 108 Copyright Law
of the People’s Republic of China, articles 10(1)(i), 19(1), 21(1) and 50 Law
of Succession of the People’s Republic of China, articles 10 and 11 Regulations
on the Implementation of the Copyright Law of the People’s Republic of China,
article 17 Interpretation of the Supreme People’s Court Concerning the
Application of Laws in the Trial of Civil Disputes over Copyright, article
30(2)
Basic facts: Yang Jikang (a famous writer and translator under the
pen name “Yang Jiang”) is the widow of Qian Zhongshu (a famous writer and
researcher in the field of literature), and they had a daughter named Qian Yuan
(deceased). Li Guoqiang is the former editor-in-chief of a monthly journal
named Wide Angle. After Qian Zhongshu and Li Guoqiang first became
acquainted in 1979, Li became a close friend to Qian Zhongshu, Yang Jikang and
their daughter, Qian Yuan, and they wrote to each other frequently. Li Guoqiang
had kept these letters.
In May 2013, Sungari International Auction Co., Ltd. (hereinafter “Sungari”), a
comprehensive auction company, announced on its official website that it would
be holding a public auction of “Collection, Letters and Manuscripts of Qian
Zhongshu” on June 21, 2013, which would include more than 100 letters and
manuscripts sent by Qian Zhongshu, Yang Jikang and Qian Yuan to Li Guoqiang.
Before the auction, preauction exhibitions and seminars would also be held.
Several media outlets, such as Xinhua Net and People.cn, reported on the
upcoming auction, declaring that the event would “reveal a large number of
manuscripts of Qian Zhongshu for the first time” and publishing in their reports
a small number of manuscript images that Sungari had made public. Through
investigation, it was found that the letters and manuscripts involved were
mainly obtained from Li Guoqiang, their content covering
private communications, household affairs, personal emotions, literary
reviews, historic reviews, running commentary and other private issues that had
never been made known to the public.
Yang Jikang strongly opposed the public auction and exhibition of the private
letters and manuscripts, and she applied to the Beijing No. 2 Intermediate
People’s Court for a preliminary injunction to stop the sale as an act of
copyright infringement. Qian Yuan and Qian Zhongshu had fallen ill and died in
1997 and 1998, respectively. Yang Jikang was their heir. Another heir, Qian
Yuan’s husband, Yang Weicheng, supported Yang Jikang’s claims.
During the course of the case, a third party, Tsinghua Unigroup Co., Ltd.,
issued a legitimate and valid statement, together with relevant materials,
guaranteeing that it would cover all economic losses that the respondent might
incur should the claimant fail to win the case.
Held: The Beijing No. 2 Intermediate People’s Court ruled that Sungari
should cease any act infringing the copyright held in the letters and
manuscripts involved, sent from Qian Zhongshu, Yang Jikang and Qian Yuan to Li
Guoqiang – that is, the auction, exhibitions and any publicity activity
involving the publication, exhibition, reproduction, distribution or
dissemination via information networks of the letters and manuscripts.
The ruling was to be immediately executed after service. In the event that any
party was dissatisfied with the ruling, it was to apply to the court for review
within 10 days of receipt of the ruling. The execution of the ruling was not to
be suspended during any period of review.
Reasoning: In this case, the Beijing No. 2 Intermediate People’s Court
held as follows.
An order that pre-trial behavior cease is also known as a preliminary
injunction, which is a compulsory order granted by courts, before trial and
upon the request of one party, to promptly prohibit or limit a certain act of
another party that does or is likely to infringe upon the intellectual property
rights (IPR) of the rights holder. It aims to protect holders from further
infringement of the rights and to prevent irreparable damage being done.
There are four main requirements for granting a preliminary injunction: (a) the
applicant must be the holder of the IPR and the respondent must be engaging, or
be about to engage, in an act that constitutes an infringement of those IPR;
(b) failure to deter such infringement promptly must be likely to cause
irreparable harm to the right holder;
(c) the applicant must have provided a valid guarantee (should their case not
be upheld and the respondent be granted permission to resume the act at issue);
and
(d) the granting of the preliminary injunction must not be detrimental to the
public interest.
I. Letters and manuscripts are works protected by the Copyright Law
The term “works”, as referred to in the Copyright Law of the People’s Republic
of China, means intellectual creations with originality in the literary,
artistic or scientific domain, insofar as they can be reproduced in a tangible
form. Letters, as a human tool used to communicate feelings, exchange ideas and
discuss issues, are usually written works independently conceived and created
by the sender, and the content or form of expression is usually not or not
fully a citation or transcription of published works by others. In other words,
letters are not a simple imitation of, reproduction of or tampering with the
works of others. Therefore, letters usually feature originality and
replicability in line with the requirements set forth in the Copyright Law, and
hence may be defined as “works” protected thereunder. Their author (that is,
the sender) should therefore be entitled to the copyright and, in this case,
according to relevant provisions of the Copyright Law, each of Qian Zhongshu,
Yang Jikang and Qian Yuan was entitled to the copyright in their own
letters. WIPO Collection of Leading Judgments on Intellectual Property
Rights: China 92
II. Applicant is entitled to request an injunction under the Law of Succession
After Qian Zhongshu’s death, Yang Jikang, his only heir, legally inherited the
property rights to his copyright, and hence could protect his rights of
authorship, alteration and integrity, and exercise his right of publication
according to law. After Qian Yuan’s death, Yang Jikang and Yang Weicheng were
her heirs and inherited the same rights to her copyright. Given that Yang
Weicheng expressly waived his rights to make claims, Yang Jikang was
consequently entitled to all of these rights according to law. In disposing of
letters and manuscripts, no one – including the receiver of the letters and
other recipients who acquire the letters through legitimate means – shall
impair the legal rights and interests of the copyright holders and their
successors.
III. Respondent is engaging in or is about to engage in an infringing act
In determining whether a work has been published or not, the single criterion
to consider is whether the work has been released to the public – namely,
whether the work is at a state such that it could be known by an uncertain
number of people. In this case, Sungari was about to make the letters and
manuscripts available for public preview and auction. In doing so, it was or
would be engaged in the reproduction and distribution of the letters and
manuscripts by means of newspapers, Light Disks, promotion brochures and
computer networks. Those acts would lead to the de facto publication
of the works, constituting an infringement not only upon the publication right,
but also upon the reproduction and distribution rights of the copyright
holders.
IV. Respondent’s act will cause “irreparable harm”
The publication right is one important personal right of copyright. It is the
right to determine whether the work is to be exposed to the public, and when,
where and by what means. The publication of the work is a one-off act. Once a
work is illegally published, it represents a rejection of the will of the
copyright holder.
In terms of this case, it meant that private letters and manuscripts would
enter the public area, which action is irreversible. Something brought to the
public’s attention can never again be the private preserve of the copyright
holder. The illegal publication of the private letters and manuscripts by means
of public auction could therefore cause irreparable harm to the copyright
holder.
More importantly, the right to publication is not only an independent and
important personal right of copyright, but also the basis on which the
copyright holder can exercise and protect other related rights. Copyright
belongs with the right holder whether the works are published or not. However,
whether the works are published or not has a great influence over the copyright
holder’s ability to exercise control over and protect their own rights, and it
also affects whether other people might obtain and use the work easily and
potentially illegally. In this case, going forward with the illegal publication
of the works will flip the “switch” between private and public status. Only
when the switch is on will the general public be able to access, spread and
reproduce the works involved. The Qians’ letters and manuscripts are private
letters written personally to Li Guoqiang. The function of private letters and
the specific content of the letters involved in this case reveal that the
sender’s intent is to transmit information,scommunicate feelings and exchange
views – not to expose what has been written to the public for their
appreciation and comment. The unauthorized publication of these works despite
Yang Jikang’s strong opposition would strip her, as copyright holder, of control
over other acts of reproduction, distribution and dissemination through
information networks, which would be likely to trigger a chain of related
copyright infringement actions. To do so would be to cause irreparable
harm to the copyright holder.
In addition, the court has sufficiently evaluated the potential impact of the
preliminary injunction. On condition that the applicant has provided a valid
guarantee, granting the preliminary injunction would not be detrimental to the
public interest. Both protecting copyright and encouraging the dissemination of
works are values guarded by law, but private letters are somewhat peculiar in
comparison with ordinary literary works, because they function as a means of
expressing private thoughts and private emotions. Such letters are not intended
for public cultural dissemination. The copyright holder’s control over these
letters is a typical right to privacy that should be highly respected.
Prohibiting the publication of private letters against the will of interested
parties is not detrimental to public interests; rather, it will help to clarify
the rules around copyright in private letters and the protection of a right to
privacy.
Based on this analysis, the court held that Li Guoqiang and the auction company
should not infringe upon the copyright of the works involved even though they
were entitled to exercise their property rights. The preliminary injunction was
granted.