Beijing Dongcheng District People's Court
Civil Judgment
(2009) Dong Minchu Zi No. 01972
Plaintiff Mr. Sun, male , born on May 22, 1977, Han nationality, manager of **Romantic Classic Culture Development Co., Ltd., lives in (omitted).
The authorized agent is Zhao*gang, a lawyer at Beijing So-Bang Law Firm.
The defendant **** Publishing House is located on the 5th and 6th floors of No. 35 Xikang Road, Heping District, ** City.
Legal representative Liu **, president.
The authorized agent is Huang **, a lawyer at Beijing ** Law Firm.
The authorized agent is Wu ***, a lawyer at Beijing ** Law Firm.
This court opened the case for acceptance on February 11, 2009, concerning a dispute over infringement of publisher’s rights between the plaintiff, Mr. Sun, and the defendant, **** Publishing House. Ordinary procedures were applied in accordance with the law. Judge Pei *Hua served as the presiding judge and formed a collegial panel with acting judges Fan Xue and Qi Lei. The trial was held in public on March 17, 2009. The plaintiff's agent, Zhao *gang, and the defendant **** Publishing House's agent, Wu **, attended the court and participated in the lawsuit. The case has now been concluded.
Plaintiff Mr. Sun claimed: According to the Beijing Dongcheng District People’s Court (2008) Dongminchuzi No. 3802 Judgment and the Beijing Second Intermediate People’s Court (2008 ) Er Zhongminzhongzi Final Judgment No. 14472, the plaintiff enjoys the exclusive publishing rights of "Mirror Dragon War" (Part 1) and "Mirror Dragon War" (Part 2), and the right period is from June 25, 2005 to 2008 July 3rd. The defendant **** Publishing House used the "Right Hand of God" part of "Mirror Dragon War" (Part 1) in the book "Mirror Broken Army" without authorization while the plaintiff enjoyed the exclusive publishing rights. The plaintiff's legitimate rights and interests were infringed, so he filed a lawsuit with the court and requested that the defendant be ordered to compensate for economic losses of 20,000 yuan and bear the litigation costs of the case.
Defendant **** Publishing House argued: First, **** Publishing House obtained the exclusive publishing rights of "The Right Hand of God" through legal means and fulfilled its reasonable duty of review and care. Second, The exclusive publishing rights claimed by the plaintiff have no factual and legal basis. As an individual, the plaintiff cannot enjoy the exclusive publishing rights of the Books. At the same time, the agreement signed by the plaintiff and the author Wang Yang shows that the plaintiff is only the author's agent, and the substantive rights should still be It belongs to the client Wang Yang. "The Right Hand of God" is only an article authorized by the author Wang Yang to the plaintiff to publish the book "Mirror Dragon War". The plaintiff cannot enjoy and claim rights similar to those of the copyright holder. If the plaintiff does have an interest The loss is only the loss corresponding to the agency act. Third, the plaintiff cannot sue repeatedly for the same infringement. "The Right Hand of God" is a 28,000-word article included in the "Mirror Dragon War" (Part 1) published by the plaintiff. in. Later, with the authorization of the author Wang Yang, the defendant included the article in the publication "Jing? Po Army". The defendant's publications "Jing? Dragon War" and "Jing? Po Army" were found by the court to constitute infringement, and A Judgment was made to compensate the plaintiff. The plaintiff's lawsuit was still based on the same publishing act that had been found to be infringing, and it was a repeated lawsuit. Fourth, the amount of compensation proposed by the plaintiff was calculated based on the copyright owner's status and based on the standard of royalties. , there is no legal basis. Fifth, the plaintiff withdrew the lawsuit against **Dangdang Information Technology Co., Ltd. in court. The Beijing Dongcheng District People’s Court has lost the basis for jurisdiction and has lost jurisdiction over this case. In summary, we disagree with the plaintiff’s lawsuit Request.
After trial, it was found that on June 25, 2005, the plaintiff Mr. Sun and the author Wang Yang (pen name Cang Yue) signed a "Book Agency Publishing Agreement" ". Agreement: The author Wang Yangjiang's "Mirror" series includes the second volume of the main story "Mirror? Broken Army", the third volume "Mirror? Dragon War" and the fourth volume (untitled) and the side story "Dream Weaver" ", and other related works in the series, the right to publish and distribute the simplified Chinese version of the book in mainland China is granted to the plaintiff; once the work is published, the plaintiff, without violating this agreement, the author Wang Yang may not publish the simplified Chinese version of his work The copyright is then granted to other individuals or organizations; the contract is valid for 4 years. On September 5, 2005, **Romantic Classic Culture Development Co., Ltd. and **Knowledge Publishing House signed a "Book Publishing Contract" for the book "Mirror? Pojun" ”, the plaintiff signed as a representative of **Romantic Classic Culture Development Co., Ltd. In October 2005, **Knowledge Publishing House published the book "Mirror Pojun" with a unit price of 20 yuan and a word count of 200,000 words, based on the novel "Pojun "" and "Dongfeng Po" are composed of two parts, of which "Po Jun" accounts for about two-thirds of the whole book.
The plaintiff filed a lawsuit on November 10, 2005 and 2005 respectively. On December 10, 2006, the "Book Publishing Contract" was signed with **Knowledge Publishing House for "Mirror Dragon War" (Part 1) and "Mirror Dragon War" (Part 2). In January 2006 and February 2006In August, **Knowledge Publishing House published "Mirror Dragon War" (Part 1) and "Mirror Dragon War" (Part 2) respectively, with unit prices of 20 yuan and word counts of 200,000 and 260,000 words respectively. "Mirror Dragon War" (Part 1) is divided into two parts. The first part is titled "Dragon War" and the second part is titled "The Right Hand of God".
On August 30, 2007, Wang Yang and **Rongshuxia Cultural Information Consulting Co., Ltd. (in October 2007, the company was renamed **Beirong Book Co., Ltd. (hereinafter referred to as **'s Company) signed a "Publishing Contract" and entrusted **'s Company to publish the "Mirror" collection, including "Mirror Dragon War" and "Mirror Poking Army". According to the contract, the company has obtained the exclusive right to use a Chinese Publishing House to publish, distribute and sell the simplified Chinese version of the authorized works in the form of books. The contract is valid for 3 years. Wang Yang also authorized the company to include the short stories "East Wind Po" and "The Right Hand of God" in the book "Mirror Po Army" as part of the "Mirror Series" anthology, but they will be retained to be published separately or collected with other short stories. Publication rights. **The company signed a "Book Publishing Contract" with the defendant on October 9, 2007 and November 2, 2007 respectively for "Mirror Po Army" and "Mirror Dragon War". ** The company signed the two books. The exclusive publishing rights of the Chinese version of the book were granted to the defendant. In November 2007, the defendant published and distributed the books involved in the case, "Mirror Dragon War" and "Mirror Broken Army". The defendant published a volume of "Mirror Dragon War" with a unit price of 28 yuan, a word count of 400,000 words, and a print run of 1-20,000 copies. The book has 17 chapters, including "Mirror Dragon War" published by **Knowledge Publishing House ( The first part in (Part 1) and "Mirror Dragon War" (Part 2). "Mirror Pojun" published by **** Publishing House has a unit price of 25 yuan and a word count of 348,000 words. It includes three parts: "Pojun", "East Wind Po" and "The Right Hand of God".
In April 2008, the plaintiff filed a lawsuit against the defendant for the book "Mirror Dragon War", believing that the defendant had infringed upon its exclusive publishing rights and exclusive distribution rights. right. On July 15, 2008, this court issued a civil judgment (2008) Dongmin Chuzi No. 3802, ordering the defendant to stop publishing the book "Mirror Dragon War" and to pay compensation for losses and reasonable expenses of 50,000 yuan. The defendant later appealed. On September 21, 2008, the Beijing No. 2 Intermediate People's Court issued the (2008) Er Zhong Min Zhong Zi Civil Judgment No. 14472, rejecting the appeal and upholding the original judgment. In October 2008, the plaintiff filed another lawsuit regarding the book "Mirror Pojun" published by the defendant. On December 5, 2008, this court issued a civil judgment (2008) Dongminchuzi No. 8412, ordering the defendant to stop publishing the book "Mirror? Pojun" containing the novel "Pojun" and to compensate for economic losses and reasonable damages. Expenditure 15,000 yuan. Neither party filed an appeal and the judgment has become legally effective.
The above facts include (2008) Dongminchuzi Civil Judgment No. 3802, (2008) Erzhongminzhongzi Civil Judgment No. 14472, (2008) Dongminchuzi No. 8412 Civil Judgment No. 1, "Mirror Dragon War" (Part 1) and "Mirror Dragon War" (Part 2) published by **Knowledge Publishing House, "Mirror Dragon War" published by **** Knowledge Publishing House, "Mirror Dragon War" published by **** Publishing House "War", "Mirror Breaking the Army" and the statements of the parties are documented in the record.
This court believes that regarding the issue of jurisdiction, although the plaintiff withdrew the lawsuit against **Dangdang Information Technology Co., Ltd. during the court session, this court based on the defendant’s The jurisdiction determined by Dangdang Information Technology Co., Ltd. is constant and will not change with the changes of the subject during the litigation process. Accordingly, this court has jurisdiction over this case.
Except for legal circumstances, the author enjoys copyright in the work. The copyright owner may exercise the copyright himself or permit others to exercise all or part of the copyright. According to the effective judgment document, the plaintiff obtained the exclusive right to use "Mirror Dragon War" and "Mirror Po Army" from the author Wang Yang. The term of this right expired on July 3, 2008. "The Right Hand of God" was published in "Mirror Dragon War" (Part 1) published by the plaintiff and "Mirror Broken Army" published by the defendant. At the same time, according to the agreement between the author Wang Yang and **'s company, "The Right Hand of God" can become a work alone. Although the plaintiff had filed a lawsuit regarding the two books "Mirror Dragon War" and "Mirror Po Army", the book "Mirror Dragon War" published by the defendant did not include the "Right Hand of God" part. The case dealt with the part of the novel "Po Jun". Therefore, the plaintiff's claim to the part of "The Right Hand of God" in this case was based on the occurrence of different damage results and did not constitute a repeated lawsuit for the same infringement.
During the period when the plaintiff enjoyed the exclusive right to use "The Right Hand of God", the defendant included the work in its book "Mirror Pojun". It constitutes an infringement of the plaintiff's exclusive right to use, and he should bear the tort liability for compensation for losses. Regarding the amount of compensation, given that the agreement signed between the plaintiff and Wang Yang has been terminated, the plaintiff claimed that the exclusive right to use "God's Right Hand" included in "Mirror Dragon War" (Part 1) only expires in July 2008. 3 days ago, so it can only claim for previous losses. Based on the above circumstances, the plaintiff’s compensation standard was too high. In the case where neither the plaintiff nor the defendant has provided sufficient evidence to prove losses or profits, this court will consider the degree of the defendant’s subjective fault, the nature of the defendant’s infringement, the popularity of the books involved, the wholesale price of the books involved, the average profit margin of the books, and the infringing part. Factors such as the proportion of book content should be determined as appropriate.
In summary, in accordance with the "Copyright Law of the People's Republic of China"Article 10, paragraph 2, Article 47, paragraph (2), Article 48, paragraph 2, "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Dispute Cases", Article 25, In accordance with the provisions of paragraphs 1 and 2, the judgment is as follows:
1. The defendant **** Publishing House shall compensate the plaintiff Mr. Sun financially within fifteen days from the effective date of this judgment. Loss of three thousand yuan.
2. Dismiss the plaintiff Mr. Sun’s other claims.
If the defendant **** Publishing House fails to fulfill its obligation to pay money within the period specified in this judgment, it shall be prosecuted in accordance with Article 2 of the Civil Procedure Law of the People's Republic of China According to the provisions of Article 129, double interest on debts during the period of delayed performance shall be paid.
The case acceptance fee of three hundred yuan shall be paid by the plaintiff Mr. Sun, one hundred yuan (already paid), and the defendant **** Publishing House shall bear two hundred yuan (in be paid within seven days after this judgment takes effect).
If you are not satisfied with this judgment, you can submit an appeal to this court within fifteen days from the date of delivery of the judgment, and submit copies according to the number of opposing parties and pay The appeal case acceptance fee shall be appealed to the Beijing Second Intermediate People's Court. If the appeal case acceptance fee is not paid within seven days after the expiration of the appeal period, the appeal will be automatically withdrawn.
Presiding Judge Pei*Hua
Acting Judge Fan Xue
Acting Judge Qi Lei
June 17, 2009
Secretary Dong Shuang
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