The Beijing Second Intermediate People’s Court delivered a judgment last month against the operator of a popular website in China called sohu.com. The action concerned the unlawful copying of SMS pictures and other copyright works from another website called sina.com contrary to the Copyright Law and the Law of Unfair Competition of China.

The dispute first arose in January 2002 when sina.com found out that sohu.com had copied over 500 mobile phone SMS pictures from sina.com without sina.com’s authorization. Sina.com wrote a warning letter to sohu.com complaining about the infringement, prior to commencing legal proceedings, but received no response.

When the dispute first came to the attention of the Court there was much speculation and discussion as to whether copyright subsists in an SMS picture. At the time of the case there had been no other ruling on the illegal copying of SMS pictures through the Internet. Furthermore, despite the fact that sina.com had arranged notaries to be present during the evidence collection procedure it was unclear whether the Court would accept electronic evidence obtained over the Internet due to the lack of any express rule or judicial notice on the issue.

Sohu.com counterclaimed against sina.com for damaging its reputation and infringing its copyright in 75 SMS pictures.

In its judgment the Court held that an SMS picture can satisfy the originality requirements for artistic works and may be protected by the Copyright Law in China. The ruling conforms with the analysis of originality in places like the United Kingdom and Hong Kong where the threshold of originality required is generally quite low in the sense that a copyright owner is only required to show that an artistic work is original and that he has exercised more than trivial effort and skill in creating the work.

The Court also held sohu.com liable on sina.com’s claim under the Law of Unfair Competition. The reasoning was that the downloading of SMS pictures can bring direct and substantial income to website operators. If sohu.com were allowed to copy sina.com’s SMS pictures without authorization and to profit by allowing users of its website to download the infringing copyright works for a fee, sohu.com would be making a financial gain to the detriment of sina.com.

The Court ordered sohu.com to pay RMB150,000 (US$19,000) as damages and RMB 66,000 (US$8,500 ) in legal costs to sina.com. In addition, sohu.com was ordered to take down all the infringing pictures from its website and publish a public apology.


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