Beijing News Victorious Over iPad app Developer Minesage, But What About The Limitations on Rights?

Beijing Haidian District People's Court ruled that software developer Minesage, who offered an iPad application to read newspapers, must stop these activities and pay 100,000 Renminbi (around 10,000 Euro).
Hao Nan of the China Daily reports here that the Beijing News sued Minesage Co. Ltd, because it used without authorisation the content and layout of the newspaper for the iPad. Beijing News has its own iPad app now, see here.

Hao Nan wrote: "Minesage argued in court that it showed readers the content copyright belonged to the original media." This would have been only relevant if Beijing News gave licensees or via Creative Commons other people permission to take over the content and/or layout under certain conditions (for example not commercial use, giving attribution to the author and making no changes to the content/layout). The author has the right to decide how its content and copyrighted layout is going to be distributed. It does not really matter if the format shifts from internet to iPad.

What is interesting is that in China all news is state news. And because of this there are some provisions in the Copyright Law of China. 

Section 4 Limitations on Rights 

Article 22 In the following cases, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced:

(4) reprinting by newspapers or periodicals, or rebroadcasting by radio stations, television stations, or any other media, of Articles on current issues relating to politics, economics or religion published by other newspapers, periodicals, or broadcast by other radio stations, television stations or any other media except where the author has declared that the reprinting and rebroadcasting is not permitted; 

(5) publication in newspapers or periodicals, or broadcasting by radio stations, television stations or any other media, of a speech delivered at a public gathering, except where the author has declared that the publication or broadcasting is not permitted;

So I think Minesage could republish from other media (including Beijing News) news about politics, economics or religion, speeches delivered at public gatherings, except when the author explicitly declared that is was not permitted. 

However, for as far the layout was copyrighted, Minesage could not use it without the authorisation of the copyright owner.

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Center Stage for Background Music: Collective Society Victorious Against Supermarket

Mena Lo and Lilian Shi of Wilkinson & Grist China wrote a short article about a copyright infringement case the Music Copyright Society of China brought against Beijing MerryMart Chain Stores.

The Beijing Haidian District People's Court awarded only 500 Renminbi damages.
Read the IAM Magazine article here.

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China's NCA versus Microsoft: Pot Calling the Kettle Black?

Last week Mr Yan Xiaohong, vice-president of the National Copyright Administration of the People's Republic of China (NCA Chinese) criticised Microsoft's Windows Genuine Advantage software, according to an AFP article. Mr Yan's has a problem that this system which turns computer desktops black every hour if the installed Windows XP operating system fails an authenticity validation test: "Measures for safeguarding (intellectual property) rights also need to be appropriate. We've paid great attention to the 'black-out' issue."

According to the AFP Mr Yan also said: "The company adopted unified prices in the past without considering the income gap between developed and developing countries[.]" Read the AFP article here.

Who is to blame here?

• Microsoft because of the quote by Mr Bill Gates in Fortune magazine which hounds him ever since about that Microsoft did not enforce its copyright in China to secure market share: "They'll get sort of addicted, and then we'll somehow figure out how to collect sometime in the next decade," read more here, and now that they do, they allegedly enforce in a consumer unfriendly way.
• China's NCA, because so far they seem to be unable to effectively enforce Microsoft's copyright and this is a case of best defense is offence and Microsoft is only securing that users "are getting the experience they expect"?
• Or both Microsoft and China's NCA?
• Nobody?

What do you think?

UPDATE 1:

Mr Joel Martinsen of Danwei.org has a great article 'Kong Yiji and the question of software piracy' about it here.

UPDATE 2:

The Haidian District People's Court in Beijing lodged a case by Mr Liu against Microsoft because of its Windows Genuine Advantage system. Cheng Zhiliang wrote an article about it for the Shanghai Daily named: 'Microsoft sued for anti-piracy measures', read it here.

UPDATE 3:

Is Microsoft budging because of the pressure? Mu Xuequan of Chinaview.cn via Xinhua wrote 'Microsoft to take more flexible pricing strategy in China' read here.

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Guge Case: Business Name vs Trademark Dispute Or Practical Problem?

On June 29, the Beijing Haidian District People's Court accepted the case of Beijing Guge Science and Technology Ltd. versus Google's subsidiary in China called Guge for disrupting business.

Tian Yunshan, company secretary for Beijing Guge Science and Technology said that he applied the use of the business name 北京谷歌科技有限公司 (Beijing Guge Science and Technology) in March 2006, and opened business on April 19, 2006, said the Beijing News according to Joel Martinsen of Danwei. Read more here.

Google filed as early as January 2006 trademark applications in a variety of areas to register 谷歌信息技术（中国）有限公司 (Gu Ge) with China's Trademark Office of the State Administration for Industry and Commerce (SAIC), Google China said yesterday in an e-mail to Janet Oong of the Shanghai Daily. Read more here.

Beijing Guge Science and Technology asks Google to change its commercial name, because Google failed to be in a phone directory, so they Beijing Guge is flooded by people they think they are Google. Beijing Guge is not asking for damages.

Commercial names can be registered without a search for similar of same names, as is mandatory in case of a trademark search. It seems that Beijing Guge has registered its business name after Google registered its trademark. Actually, it actually could infringe Google's trademark, if it operates in the same line of business.

IP Australia did a very interesting survey in 2005 on the Australian business community's knowledge of the differences between business names and trademarks. The lack of awareness of the differences between the two and misconceptions were rather big. It would not be surprising if this were the case in other places too, including China. I paraphrase IP Australia: Business names are just business signifiers, not a form of entitlement or an active title that is owned exclusively by a business, nor does is confer rights upon and protects its owner. For this you need trademarks. Read more here.

In casu, the problem seems not too hard. Beijing Guge and Google and the phone directory 114 could come up with a practical solution, so Beijing Guge can continue to work. However, the question remains what does Beijing Guge really wants. And why did Tian decline to disclose the main businesses of the company?

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