Zhou Xiuluan, a retired professor of Zhongnan University of Economics and Law, v. China Academic Journal (CD-ROM Edition) Electronic Magazine Co., Ltd. (hereinafter referred to as HowNet). A series of cases of infringement on the right to disseminate information on the Internet of his works were represented by lawyer Lin Wei of our institute. On April 28, 2022, the Beijing Intellectual Property Court made a final judgment, which was published on the China Judgment Document Network on May 7.

Judgment of second instance: the appeal was dismissed and the original judgment was upheld.

First-instance judgment: it is judged that Zhou Xiuluan's compensation for a single article of HowNet ranges from 2,100 yuan to 2,400 yuan; In each case, HowNet also bears Zhou Xiuluan's notary fee 29 yuan and lawyer's fee 1000 yuan.

Professor Zhou Xiuluan is Professor Zhao Dexin's lover. Last year, after our firm represented Professor Zhao Dexin in defending his rights by including more than 100 articles by HowNet without authorization, this series of cases in which Professor Zhou Xiuluan sued HowNet for infringing on the right of information network communication of his works were still represented by our firm, and achieved both legal and social effects.

Focus of controversy

1. Does HowNet's provision of online browsing and downloading services for the works involved constitute infringement?

2. Does the alleged use of HowNet constitute a legal license?

3. Does Zhou Xiuluan's taking evidence from different communication ports and suing them separately constitute repeated litigation?

Four, the court of first instance on hownet should compensate for the economic losses and the reasonable amount of judgment is reasonable.

The court held that

01

The agreement between HowNet and the relevant magazines is not enough to prove that the magazine has obtained legal authorization from Zhou Xiuluan, nor is it enough to prove that HowNet has obtained legal authorization from Zhou Xiuluan through the magazine. The "CNKI mobile phone HowNet" iOS mobile phone software operated by HowNet provides download and reading services for unspecified public, which infringes on Zhou Xiuluan's right to spread the works involved in the information network and should bear tort liability.

02

HowNet's behavior of publishing the works involved in the case on its "CNKI mobile phone HowNet" iOS mobile phone software and allowing network users to download them does not belong to the statutory license for newspaper reprinting stipulated in Article 35 of the Copyright Law of People's Republic of China (PRC) (revised in 2020).

03

Different terminals spread in different ranges, and the damage caused and the scope of compensation that can be claimed are also different. It is not improper for Zhou Xiuluan to notarize and collect evidence separately and file lawsuits separately.

04

Considering that the works involved are professional academic articles with high originality, but they were created and published earlier; The infringement of academic journal companies involved in the case has a wide range of influence and obvious subjective fault; The number of words involved in the article shall be determined according to the number of words in the layout, and the amount of compensation for economic losses shall be determined according to the relevant factors such as the number of words in less than 1,000 words, and the amount shall be considered fully and appropriate.

In conclusion:

The Beijing Intellectual Property Court made a final judgment of "rejecting the appeal and upholding the original judgment" in accordance with the provisions of Article 177, paragraph 1 (1) of the Civil Procedure Law of People's Republic of China (PRC).

Lawyer Li Weimin, the director of Beijing Weibo Law Firm, said in an interview with Voice of China that although the "hownet model" has spread the works during its operation, it has played a certain positive role in the prosperity of culture, especially in the field of scientific research, which has provided more convenient ways for more scientific research institutions and researchers to see and use the works.

However, we hope that HowNet will operate legally and legally, abide by the provisions of People's Republic of China (PRC) Civil Code, People's Republic of China (PRC) Copyright Law and other relevant laws, follow the basic principle of "authorization before use", and consciously abide by the relevant order of works dissemination. I also hope that HowNet will eliminate the exclusive license and reach a fairer and more reasonable benefit distribution model and authorization model with periodical agencies, magazines, authors and rights holders. Of course, based on the operating cost of HowNet itself, scientific research institutions and periodicals need to pay a certain license fee, but it should also be collected openly, transparently, fairly and reasonably within a reasonable range, otherwise it will inevitably lead to more disputes.