Online media must think before ‘reprinting’ works from print

By Wang Yadong and Lu Lei, Run Ming Law Office
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Not long ago, the Chongqing Daily Newspaper Press Group issued a copyright statement stating that the content in which its subsidiary press websites and platforms own the copyright is limited solely to its subsidiary media as the first online publication platforms. Save to the extent where it may reasonably be used under laws and regulations, no other website has the right to use the same without written authorisation.

This statement has again raised the question of whether reprinting and excerpting without the permission of the copyright holder constitutes copyright infringement, while triggering a debate over the issue of the legal basis for such a statement and the rights and obligations involved in the reprinting of print media works by online media.

王亚东 Wang Yadong 润明律师事务所 执行合伙人 Executive Partner Run Ming Law Office
王亚东
Wang Yadong
润明律师事务所
执行合伙人
Executive Partner
Run Ming Law Office

Copyright holder’s permission

Under normal circumstances, whenever an online medium wishes to “reprint” a work from a paper medium, it is required to secure the permission of the copyright holder and pay remuneration. Item 12 of the first paragraph of article 10 of the Copyright Law specifies that a copyright holder has the right of communication via information networks, i.e. the right to make its work available to the public by wire or by wireless means, enabling the public to access the work at a time and from a place of their choosing.

Article 2 of the Regulations for the Protection of the Right of Communication Via Information Networks specifies that “the right of communication via information networks enjoyed by rights holders shall be subject to the protection of the Copyright Law and these regulations. Unless otherwise specified in laws or administrative regulations, any organisation or individual that wishes to provide another person’s work, performance or sound or video recording to the public through an information network shall require the permission of, and pay remuneration to, the rights holder”.

Unless otherwise provided in laws or regulations, the uploading by an online medium of a work from a print medium to its own website to make it available to the public without the permission of the print medium clearly constitutes infringement of the copyright of the holder of the copyright in the reprinted work.

The reprinting of works from the print media by online media does not fall within the scope of statutory licensing. The second paragraph of article 33 of the Copyright Law specifies that a printed work may be reprinted, abstracted or printed as reference material, by another newspaper or periodical, unless the copyright holder has declared that reprinting or excerpting is not permitted; however, the copyright holder shall be remunerated in accordance with regulations. This article only refers to the issue of reprinting by newspapers and periodicals, but not by online media.

Article 3 of the now repealed Interpretations of the Supreme People’s Court of Several Issues Concerning the Application of the Law to the Trial of Copyright Disputes Involving Computer Networks provided that where a work which has been printed in a newspaper or periodical, or communicated via a network, is reprinted or excerpted online, infringement is not constituted as long as remuneration is paid and the source is indicated, unless the copyright holder has declared that reprinting or excerpting is not permitted.

From this it can be seen that at one time there was statutory licensing for the reprinting of the works of other print media by websites. However, the Supreme People’s Court removed the provision in 2006 as it proved controversial in light of the intensifying conflict between print and online media.

陆蕾 Lu Lei 润明律师事务所 合伙人 Partner Run Ming Law Office
陆蕾
Lu Lei
润明律师事务所
合伙人
Partner
Run Ming Law Office

Obligations clarified

Article 3 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Law in the Trial of Civil Disputes over the Right of Communication Via Information Networks, which entered into effect on 1 January 2013, specifies that where an online user or network service provider provides through an information network without permission a work, performance, or audio or video recording in respect of which the rights holder enjoys the right of communication via information networks, the people’s court is required to find that infringement of the right of communication via information networks is constituted, unless otherwise provided in laws or administrative regulations. This further clarifies the obligations for an online medium before it proceeds with reprinting.

An online medium may use the work of a copyright holder without its permission and without paying it remuneration only under a circumstance of reasonable use, in which case it is required to indicate the author’s name and the title of the work, and may not infringe other rights of the copyright holder.

Pursuant to the Copyright Law, “reasonable use” relevant to the reprinting of a work from a print medium by an online medium may be divided into three circumstances: (1) for the purpose of reporting current events, it has to play back or cite a work that has already been published; (2) the publication by a newspaper or other such medium of an article on a current political, economic or religious topic already published by another newspaper or other such medium, unless the author declares that such publication is not permitted. Commentary on a current topic and pictures of current content do not fall within this scope, and if an online medium wishes to reprint the same, it must first secure the consent of the copyright holder before doing so; and (3) publication by a newspaper or other such medium of a speech given at a public gathering, unless the author declares that such publication is not permitted.

Few exceptions

With the exception of a few special cases, online media should always obtain permission from copyright holders and pay remuneration when reprinting work from print media sources. The lead author would argue that the reason why the Chongqing Daily Newspaper Press Group made the above-mentioned statement can be traced to the immense costs it expends for gathering, editing and reporting its stories, which are then appropriated by online media without consideration.

Certain online media groups are willing to secure permission and pay remuneration, but are prevented from doing so due to the inefficiency of the process for securing permission and the lack of standards and transparency for the licensing fees. If the state or an industry association could establish a collective management organisation similar to a musical work collective management organisation, this would truly be the fundamental means of resolving the conflict between the two.

Wang Yadong is the executive partner and Lu Lei is a partner at Run Ming Law Office

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