TV station in court over IPR argument

GUANGZHOU: A local television station appeared in court yesterday for allegedly violating private intellectual property rights (IPR). The Guangzhou TV Station was asked to stop showing a popular TV beauty contest programme "Beauty in the Flower City" by Hua Cheng, who insisted he was the producer and owner of the programme.

"The programme has not been shown properly according to the initial plans and the station has violated the copyright," said Hua. Hua began working at the station in 1987, launched the programme in 1988 and left the station in 2000. "The programme was not assigned by the station and it was launched without any financial support from the station during the first session," Hua said. "I collected money through advertisements and produced the programme all by myself. As a result, it became a personal TV product," he insisted in Guangzhou Intermediate People's Court.

The station denied the charges in court yesterday, saying the programme's copyright should not belong to an individual. "The programme's copyright belongs to the station since Hua launched it in the name of the station," said lawyer Zhu Xiaobing of the station. According to Zhu, the station registered the programme's trademark in 2000.

However, the Guangdong Provincial Copyright Bureau said Hua registered the copyright of the programme in June this year.

The TV station was also asked by Hua to pay compensation of nearly 10 million yuan (US$1.25 million), believed to be the largest amount of its kind in the nation.

The court did not reach a verdict yesterday. "It was a typical IPR case involving trademark rights and a copyright dispute," said Zhou Yuzhong, a lawyer at a Guangzhou-based law consultation firm. According to Zhou, the programme should be thought of as a personal product if not supported financially by the station.



1 Comment

  • 1.jennifer  |  August 29, 2006, 11:52 pm

    With respect to this case, I think there are mainly three key points that are worth discussion. First, we need to determine whether Hua Cheng is a "producer" of the program. In this case, assuming it is true that the "Beauty in the Flower City" TV program was an original production created by Hua, then according to Article 15 of the PRC Copyright Law stipulating that "Copyright in a cinematographic work or a work created by virtue of the analogous method of film production shall vest in the producer", Hua shall of course enjoy the copyright thereof. Given such scenario, where a television station (in this case, Guangzhou TV Station) wants to broadcast the program, it shall always get the permission of the producer and pay certain compensation. Additionally, any use of the work by the television station must not infringe the right of authorship, the right of alteration, the right of integrity to the work and the right to get compensation of the copyright owner. Failing all such, we may believe the station has committed copyright violation.

    Second, we need to determine whether the program is a piece of "work for hire" or "commissioned work". On the one hand, if it is a work created by Hua for fulfilling tasks and mainly by using the material and technical resources of the TV station, it shall be deemed as a hired work the copyright of which (except the right of authorship) shall be enjoyed by the employer. However, assuming it is true that Hua completed the production of the program independently, Hua shall then be the copyright owner. On the other hand, if the work is created under commission, the ownership of copyright shall be stipulated by the commissioning party and the commissioned party. When there is no such stipulation in the contract or no contract is signed, copyright shall vest in the commissioned party. Absent any contract or agreement in this case, we may believe that Hua is the copyright owner of the program which is a personal work and may as well revert to the above paragraph to determine the rights and obligations of the two parties.

    Third, we need to determine which shall be granted priority with regards to the conflicts between trademark registration and copyright registration. It is a generally accepted practice that copyright, as a "prior right", shall prevail. According to the PRC Trademark Law and its implementation rules, trademark registration applicant must not infringe upon any existing prior legal rights of others. Hence, if it is true that the TV station actually infringed upon Hua's copyright in its registration of the trademark of the program, then Hua may apply for cancellation of the registered trademark or file a lawsuit with the court.

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