A letter to Sanmao (also known as Echo Chen Mao-ping), a late Chinese writer based in Taiwan province, from her father was exposed in a season two episode of the TV show Letters Alive. Sanmao's siblings sued the TV show in the Beijing Internet Court (BIC), alleging copyright infringement of a written work.

On June 5, 2020, the BIC released its judgment of the first instance, determining that the TV show's usage of the letter constituted infringement of the rights of alteration, reproduction, performance and information network dissemination.

Case summary:

The plaintiffs: The TV show Letters Alive used the letter involved without authorization and such use constituted infringement of the rights of alteration, reproduction, performance and information network dissemination.

According to the plaintiffs, Sanmao's three brothers and sisters, who are the legal heirs of their father Chen Siqing, the letter to Sanmao from their father titled Past, Present and Future was read on episode 10 of Letters Alive, season two. They believed that the usage of the letter was unauthorized and constituted infringement of the rights of alteration, reproduction, performance and information network dissemination. They thus sued the owners of the TV show- Share Television Media, Tencent Penguin Pictures and Heilongjiang Broadcast TV Station in the BIC and requested an apology to lessen the impact of the usage as well as compensation for mental damages, economic loss and reasonable legal expenses.

The defendants: Reading of the letter in the show was fair use.

According to the defendants, reading of the letter was a proper quoting of the letter for the purpose of introducing, commenting on and explaining relevant topics, and thus constituted fair use and involved no infringement as alleged. The behavior in dispute did not cause mental damage or physical loss, and the claim for an apology and compensation was not supported by the evidence. 

Focus of dispute:

Did the plaintiffs own the copyright of the letter in dispute? Were they entitled to file a lawsuit on those grounds? Did the defendants commit infringement of the rights of alteration, reproduction, performance and information network dissemination of the letter in dispute? And did the reading constitute fair use as stipulated in the Copyright Law?

Upon hearing all available evidence, the BIC concluded that:

1. The reading behavior involved constituted alteration, reproduction, performance and information network dissemination of the letter in dispute.

Right of alteration: Partially changing the content and amending the words in the work constitutes alteration of the work and falls in the scope of the right of alteration. Even positive results of the change cannot be used as a justification for the infringement. In the TV show, words and phrases were added or deleted in the letter, orders of sentences were changed, and the title was changed as well. Those all constituted alteration of the work.

Right of reproduction: The act of reproduction does not require an accurate reproduction of the whole work. A basic expression of the work constitutes reproduction, even if alterations are made or only part of the content is used. The TV show used subtitles to reproduce part of the letter’s content, and although some parts were altered the basic expression still remained and thus the behavior constituted reproduction of the letter in dispute.

Right of performance: Reciting written works, playing music and singing are typical live performances. In the TV show, the actor recited parts of the letter to the audience on site, which constituted performance of the work.  

Right of information network dissemination: The TV show contained the performance and subtitles of the letter involved, and was available online. Thus the public had access to the content of the letter. Despite the fact that the information of the letter was directly disseminated to the TV show, it in reality was offered to the public. Therefore the act of presenting the work on the online TV show constituted disseminating the contents of the letter online and falls within the scope of a violation of the information network dissemination right.

2. The use of the letter on the TV show was beyond the limit of appropriate quotation and thus was not fair use.

In terms of the purpose of usage, the TV show included two parts, reading and commenting. The reading part, more attractive and appealing to the audience, was the focus of attention and the core part of the show. Therefore it could be determined that the purpose of using the letter in dispute was not just to introduce or comment on it, but to unfold the content of the letter to attract a greater audience.

In terms of the extent of quotation, the letter in dispute was over 4,000 words, and the show quoted over 1,000 words from it. The quoted part covered most of the substantive content of the letter. Considering both the amount and the content of the quotation, the usage of the letter in the show basically reproduced its contents and was thus not appropriate quotation.

Moreover, the unauthorized reading of the letter in the show will inevitably impact the plaintiffs' authorization to others to use the letter in a similar manner. Alteration of the letter not only impacted the plaintiffs' economic interest, but also infringed the right of alteration, a lawful right of the copyright owners.

Therefore, the usage of the letter in the show was not only for introduction or commentary. It was beyond the limit of appropriate quotation, impacted the regular use of the letter and damaged the lawful rights and interests of its copyright owners.

3. The defendants should bear civil liabilities for the infringement.

As stipulated in Article 15 of the Copyright Law, the copyright of a work created in a way similar to cinematography shall be enjoyed by the producer. The three defendants were the co-producers of the TV show involved, so unless there is evidence to the contrary, they should be the copyright owners of the TV show and should bear liabilities for the show's infringement of rights of alteration and reproduction.

As stipulated in Article 37 of the Copyright Law, a performer (an individual performer or a performing group) who for a performance exploits a work created by another shall obtain permission from and pay remuneration to the copyright owner. A performance organizer who organizes a performance shall obtain permission from and pay remuneration to the copyright owner. The three defendants were the performance organizers and should bear liabilities for the unauthorized performance of the letter in dispute. The TV show involved was disseminated on Tencent Video, an online platform operated by the internet and technology company Tencent, and the end of the show was marked "the information network dissemination right of this program is exclusively owned by Tencent."

As copyright owners of the show involved, the three defendants had the right to decide and control the content and annotations of the show. In the absence of evidence to the contrary, the annotations should be regarded as the three defendants' expression of intent, that is, the three defendants authorized Tencent to exercise the exclusive information network dissemination right of the show involved. That authorization directly led to the broadcasting of the show on Tencent Video and was the precondition and basis for Tencent Video's dissemination of the show online. It could thus be determined that the broadcasting of the show was a joint behavior of the three defendants who should be held responsible accordingly.

The BIC also concluded that although the three plaintiffs enjoyed the right of alteration of the letter in dispute, they were not the holders of the copyright personal rights. Therefore, they were not the victim of the infringement and subsequently could not suffer from mental damage. They were thus not entitled to demand an apology and compensation for mental damage from the defendants.

When altering the title, words and content of the letter in dispute, no explanations were provided, which could lead to a misunderstanding that what was presented in the show was the original content of the letter. That damaged the consistency between the letter and its author's personality and thus damaged the author Chen Siqing's spiritual interests over the letter. The damage would not be compensated by positive reviews of the show; rather it would be aggravated by any further dissemination of the show. To eliminate the impact, the BIC ordered the defendants to publish a statement in a prominent position on chinaxwcb, a newspaper published by China Press and Publishing Media Group.

Considering the popularity of the letter and the show's scope of dissemination, the BIC determined that the plaintiffs' claim of compensation for economic loss and reasonable expenses had a factual basis and should be supported.

Details of the judgment:

Within 10 days of the judgment, the three defendants were ordered to publish a statement in a prominent position on chinaxwcb to limit the impact brought by the infringement of the right of alteration of the letter in dispute. They were also ordered to pay 62,636 yuan ($ 9,903. 55) for economic loss and reasonable expenses to the plaintiffs for infringing the rights of reproduction, performance and information network dissemination of the letter in dispute. The other claims of the plaintiffs were rejected.  

This article is transferred from Beijing Internet Court, and I would like to thank you.