August 24, 2004
Shandong Provincial Higher People's Court,
Your Request Report on the Case of Infringement of Copyright Disputes between Shandong Tianhao Advertising Co., Ltd. and Qingdao Hisense Communication Co., Ltd. ( Lu Min San Zhong Zi No. 68) was received. After researching and soliciting the opinions of the National Copyright Administration, the answers to the relevant legal issues involved in your request report are as follows:
According to the provisions of Article 22 of the Copyright Law of the People's Republic of China, "copying, drawing, photographing, or video recording of an artistic work located or on display in an outdoor public place … may be exploited without the permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner by virtue of this Law are not infringed upon". The behavior of Qingdao Hisense Communication Co., Ltd. shooting the sculpture The Wind of May belongs to the scope of reasonable use of the works as stipulated in the above-mentioned provisions of the Copyright Law.
According to Article 18 of The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Civil Disputes over Copyright, which makes judicial interpretations on the provisions of Article 22, Item 10 of the Copyright Law, that copying, painting, photography, and video recording of works of art such as sculptures, paintings, and calligraphy that are set up or displayed in public places of public activities in outdoor communities, it may be used in a reasonable approach and scope for its results and does not constitute infringement. Here, for 'reasonable approach and scope', the 'approach and scope' for profit purposes should be included. This is the original intention of formulating the Judicial Interpretation. This provision of judicial interpretation is in conformity with the basic spirit of fair use as stipulated by the Berne Convention, and it is also in line with the legislation of most countries in the world. According to the provisions of the above judicial interpretation, the judgment of the judicial committee of your court is correct in handling the tendency of the case.