China

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.