China’s Copyright Misuse Law Compared to US Law

Li Guangyu

INTRODUCTION

Copyright law is a mechanism of protecting economic and moral rights arising from creations of literature, arts, science, engineering and so on. In the mechanism, authors are granted exclusive rights, including but not limited to right to reproduce, right to distribute, right to reform, right to display publicly, right to perform by means of digital devices, right to authorize others to exercise above rights and so on. The goals of copyright law are to encourage creations of individuals, and to promote cultural creation and development of the entire society. The two goals do not always reconcile with each other. When a copyright holder seeks such protection that copyright law does not allow, various defenses against alleged infringements are available. One of the defenses is copyright misuse. The rationale behind this general principle in many jurisdictions is that rights of all kinds cannot be misused.

China’s Copyright Law does not allow for a copyright misuse defense. Only the Anti-Monopoly Law prohibits “misuse of intellectual property rights”. This arrangement is justified in the sense that copyright law protection denotes a form of lawful monopoly and overprotection of a copyright would constitute monopoly.[1] As explained in this note, however, this prohibition leads to some problems.

Copyright misuse defense in U.S. law is an equitable defense. Its effect is not to invalidate the copyright, but to preclude its enforcement during the period of misuse. Initially, U.S. courts recognized the defense when the conduct by the plaintiff, who is the copyright holder, barred competition through a licensing agreement. Misuses in these situations were deemed as exceeding the lawful scope of the copyright holder’s monopoly. According to this rationale, the anti-competitive nature of the plaintiff’s conduct is inevitable for determining copyright misuse, which is also a theme under China’s Anti-Monopoly Law.

Afterwards, however, U.S. courts developed another justification, namely, that it would constitute a violation of the public policy embodied in copyright law. This public policy manifests itself in the notion of promoting the dissemination of ideas. This development makes courts open to the possibility that one may misuse his or her copyright even without anti-competitive nature.

Part I of this note provides an overview of the copyright misuse defense in U.S. law, including how it was established and developed. Part II examines relevant issues regarding copyright misuse in China, pointing out that there are some limitations of copyright misuse protection under current legislation and judicial practice. Finally, Part III describes my proposal concerning copyright misuse in China’s Copyright Law.

I. COPYRIGHT MISUSE DEFENSE UNDER US LAW

A.  Lasercomb Am., Inc. v. Reynolds Establishes Copyright Misuse Defense

The United States Court of Appeals for the Fourth Circuit first established the copyright misuse defense in Lasercomb Am., Inc. v. Reynolds.[2] Plaintiff Lasercomb and defendant Holiday Steel were competing steel rule dies manufacturers. Lasercomb developed a software program and a copyright was granted.[3] Before Lasercomb generalized the marketing of the program, it reached a licensing agreement with Holiday Steel.[4] Then Holiday Steel created its own software program which was almost entirely a direct copy of Lasercomb’s.[5]

In light of the language in the licensing agreement, the court concluded that Lasercomb barred Holiday Steel from developing any kind of computer-assisted die-making software, suggesting that Lasercomb attempted to control competition in the field of computer-assisted die manufacturing by using the particular expression in the form of its copyrighted software.[6] Therefore, Holiday Steel’s argument that Lasercomb misused its copyright was accepted.[7]

The court in this case made two vital contributions as to copyright misuse defense. The court concluded that, because copyright law and patent law “serve parallel public interests,” copyright misuse defense is allowed as is patent misuse. Secondly, the court wrote that “[t]he analysis is necessary to a finding of misuse is similar to, but separate from, the analysis necessary to a finding of anti-monopoly violation.”[8] So, the copyright holder may commit copyright misuse even without violating Anti-Monopoly Law.[9] The matter to be examined is whether copyright holders’ conduct violated “the public policy embodied in the grant of a copyright.”[10]

Nevertheless, the Lasercomb court did not give any specific instructions as to determination of plaintiff’s violation of such a public policy. The court left a big question unanswered.[11] Anyway, based on the foregoing analysis of court’s opinion, in order for a conduct to be deemed as copyright misuse, although plaintiff need not violate Anti-Monopoly Law, yet analysis of monopolistic nature of copyright holder’s conduct is unavoidable.

B. Subsequent developments in Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc.

In DSC Communication Corp. v. DGI Technologies, Inc., where DSC sued DGI for copyright infringement, United States Court of Appeals for the Fifth Circuit concurred with the Lasercomb court.[12] DGI attempted to develop its own microprocessor card different from DSC’s card which could be used in DSC’s phone switches.[13] Such development inevitably needed a copy of DSC’s software in order to test the created microprocessor card.[14] The court held in favor of copyright misuse defense after concluding that DCS tried to gain “a patent-like monopoly over unpatented microprocessor cards” by preventing others from copying its software to test new cards.[15]

In Practice Management Information Corp. v. the American Medical Association (“the AMA”), the AMA created a coding system capable of providing precise medical procedure identifications and developed it into a publication of the Physician’s Current Procedural Terminology (“the CPT”).[16] The AMA licensed Health Care Financing Administration (“HCFA”) to “use, copy, publish and distribute the CPT.”[17] In exchange, HCFA was prohibited from using “any other system of procedure nomenclature . . . . for reporting physicians’ services.”[18] Practice Management, a publisher and distributor of medical books, brought a lawsuit arguing that the AMA misused its copyright after failing to get wanted discount of the CPT copies from the AMA.[19] The court held that “limitation imposed by the AMA licensing agreement on HCFA’s rights . . . . to use” other systems constituted a copyright misuse because the AMA gained “a substantial and unfair advantage over its competitors.”[20]

The two cases mentioned above indicate that copyright misuse defense set in Lasercomb is increasingly accepted in U.S. courts. The AMA case developed copyright misuse defense into a cause of action, enabling plaintiffs to sue the copyright holder whose conduct constitutes misuse. Similar to the courts’ reasoning in these two cases, many courts of appeals in other circuits analyzed the existence of copyright misuse based on monopoly conduct.

Such basis was not expanded until the Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc. case. In this case, plaintiff (Video Pipeline) pointed out that the licensing agreements that Disney has entered into with three companies suggested copyright misuse.[21] The agreements provided that Disney would deliver trailers for display on the licensees’ websites on the condition that the websites where trailers were shown were not allowed to derogate or criticize the entertainment industry or Disney.[22] The court held that the misuse defense failed because the licensing agreements’ attempt to restrict expression was not so significant as to affect the “public interest in increasing the public store of creative activity.”[23] Specifically, the court reasoned that, because the licensees were free to express criticism on other websites, the public was not adversely affected in terms of accessibility to criticism.[24] Besides, fair use doctrine might be triggered when a critic comments on Disney and the entertainment industry, which can provide the alleged infringer with protection.[25] To hold otherwise would harm the public’s access to Disney’s works because copyright holders like Disney would refuse to license trailers on any website for fear of being criticized.[26]

Video Pipeline case was a milestone case. Even though the Court decided that the misuse defense was inapplicable in this case, the reasoning it provided is what is relevant here. The court here explicitly cited as the underlying policy rationale for the copyright misuse doctrine an argument other than the anti-monopoly one:

Misuse often exists where the patent or copyright holder has engaged in some form of anti-competitive behavior . . . . More on point, however, is the underlying policy rationale for the misuse doctrine set out in the Constitution’s Copyright and Patent Clause: “to promote the Progress of Science and useful Arts.” Const. Art. I, § 8, cl. 8 . . . . The “ultimate aim” of copyright law is “to stimulate artistic creativity for the general public good.” Sony Corp., 464 U.S. at 432, 104 S.Ct. 774 . . . . Put simply, our Constitution emphasizes the purpose and value of copyrights and patents. Harm caused by their misuse undermines their usefulness.[27]

 

II. COPYRIGHT MISUSE IN CHINA

A. legislation relating to copyright misuse in China

The expression of “misuse of intellectual property rights” first appeared in China’s Anti-Monopoly Law, but it does not give any explanation of the term. “Copyright misuse,” as a subtype of intellectual property right misuse, therefore, has no definition.

China’s Copyright Law does not provide for a copyright misuse defense, but that does not mean misuse conduct is permitted. Theoretically, on the one hand, China’s Copyright Law allows for the Fair Use doctrine.[28] On the other hand, Civil Law and Anti-Monopoly Law give protection beyond Copyright Law.[29] For example, the basic principles of civil law including good faith and adherence to honesty guide parties not to misuse their rights.[30] Moreover, business operators violate Anti-Monopoly Law when they misuse their intellectual property rights, precluding or restricting competition.[31]

Note that the Fair Use doctrine in China’s Copyright Law includes 12 types of conduct, but certain copyright misuse is still beyond the scope. Protection in Copyright Law against copyright misuse is rather limited. Besides, the judiciary has not so far applied principles of Civil Law to copyright misuse problems, partially because judges seem to have a belief that copyright holder’s rights cannot be surpassed by the basic principles of Civil Law.[32] Judges are more comfortable with those principles appearing as supporting authorities and citing specific provisions in the most related area of law.[33] Lastly, Anti-Monopoly Law generally applies when misuse conducts involve potential monopoly.

Some scholars categorize the restrictions under these laws as internal (Copyright Law, Civil Law and Contract Law) and external ones (for example, Anti-Monopoly Law).[34] Parties suffering from copyright misuse are entitled to the right of claim under Copyright Law, Civil Law and Contract Law. To the extent that the dispute arises from the private parties, the protection is internal.[35] Because executive power of public authority is supposed to interfere and regulate copyright misuse conducts under Anti-Monopoly Law, the protection is external.[36] As is further discussed below, such dual mechanism has some problems.

B. Examination of China’s judicial practice concerning copyright misuse

    1. One guiding case in China—Beijing Jingdiao Technology Co., Ltd. v. Shanghai Naikai Electronic Technology Co., Ltd.

The guiding case system is a system in which the Supreme People’s Court determines and uniformly publishes guiding cases that have a guiding function for trial and enforcement by people’s courts throughout the country.[37] Up until February 25 2019, 112 guiding cases have been released. Their legal force is that they “shall” be used “as a reference”.[38] Specifically, unlike the common law system, they have no binding effect and cannot be cited as law itself.[39] Instead, they should be referred to as reasoning of the ruling.[40] Guiding cases issued by the Supreme People’s Court may justify judges’ ratio decidendi. [41] Beijing Jingdiao Technology Co., Ltd. v. Shanghai Naikai Electronic Technology Co., Ltd. is a case decided in 2006 and released as one of the guiding cases in 2015.

In Beijing Jingdiao Technology Co., Ltd. v. Shanghai Naikai Electronic Technology Co., Ltd., plaintiff Jingdiao Technology developed software called JDPaint and was entitled to a copyright. It must only be used through an engraving machine produced by Jingdiao Technology. Jingdiao Technology encrypted data necessary for using the software, trying to prevent others from reading the data and using the JDPaint software. Defendant Naikai Electronic avoided the encryption and developed its own engraving machine which is capable of reading the data to use JDPaint. Plaintiff Jingdiao Technology then sued for copyright infringement. Naikai Electronic alleged that plaintiff made a tie-in sale by encrypting its software and thus monopolized the market. The Shanghai High People’s Court concluded that according to Article 48 Paragraph 1 Subparagraph 6 of China’s Copyright Law and Article 24 Paragraph 1 Subparagraph 3 of the Regulations on Computer Software Protection, avoidance or destruction of copyright protection measures is a copyright infringing conduct.[42] However, the protection measures shall not be misused.[43] The encryption used by the plaintiff was not to protect its copyright, but to protect its interest in engraving machine by restricting competition and obtaining monopoly advantage.[44]

This case is analogous to DSC Communication v. DGI Technologies to the extent that the two courts defined plaintiff’s conducts—attempting to monopolize the market by taking advantage of the link between copyrighted software and certain physical products—as exceeding the protection scope of the copyright and thus constituting a misuse of the copyright.[45] The court analyzed misuse conduct based on the anti-competitive nature of the conduct. It is noteworthy that Anti-Monopoly Law was not enacted yet at the time of decision, so whether the Supreme People’s Court would have guided other courts to require violation of Anti-Monopoly Law in order to constitute copyright misuse is not clear. Anyway, this case shows that analysis of anti-competition is an inevitable consideration of copyright misuse, which is similar to judicial practice in the United States.

    1. One typical case in China—Jilin University Press LLC v. Changchun Publishing & Media LLC

Since 2009 the Supreme People’s Court of China has been publishing 50 typical cases of intellectual property each year. Even though the cases have less force than guiding cases, they not only indicate the Supreme People’s Court’s recognition of judgment by courts at all levels, but also can be used to provide guidance and reference for judges.[46] Jilin University Press LLC v. Changchun Publishing & Media LLC is a typical case decided and released in 2015.

In Jilin University Press LLC v. Changchun Publishing & Media LLC, Changchun Publishing was entitled to a copyright of the Chinese Textbook (Grade 5 First Volume) of Compulsory Education Course Standard. Jilin University Press copied it in its Star Teachers on Textbook by including 11 of the same units and the same content under several units. Changchun Publishing sued for copyright infringement. Jilin University Press responded that Changchun Publishing misused its copyright because Changchun Publishing would monopolize the education publication market if it claimed to cease the alleged infringing conducts of Jilin University Press.

The first-instance court rejected the misuse defense. It concluded, firstly, that there would be no monopoly if Jilin University Press was able to use the copyrighted work after obtaining a license from Changchun Publishing and, secondly, that to ask for the cessation of the infringement is a proper exercise of copyright. Jilin University Press appealed, alleging that textbooks are in essence public products, which should be differently protected from other books. They argued that to support Changchun Publishing’s complaint is to damage the public interest.

Jilin Province Higher People’s Court held in the second instance that the publishing industry in the educational field is a commercial field open to all eligible publishers where they compete to make profits and improve qualities of textbooks objectively.[47] Changchun Publishing put efforts into creating the books and was entitled to copyright against any other person’s infringement. The claim that the copyright holder, Changchun Publishing, violated Article 55 of Anti-Monopoly Law of the People’s Republic of China—prohibition of intellectual property right misuse—was not supported by sufficient evidence and was only arbitrary.[48]

The first instance ruling has two problems.

The first one is that the court actually gave no boundary or way of determining the boundary of misuse. Thus, it gave no reasoning as to why the copyright holder’s conduct was a proper exercise of copyright. That said, the fact that the court referred to “monopoly” in its conclusion probably suggested the court’s opinion: copyright misuse has something to do with monopoly.

The second problem lies in the causation between the license agreement and absence of monopoly. The court concluded that “if Jilin University Press lawfully used the copyrighted textbook after obtaining a license and paying for it, then there would be no monopoly of the textbook market.” But is it true? Recall the AMA case where the U.S. court held that the licensing agreement was a misuse of copyright because it enabled the copyright holder to monopolize the market by prohibiting the licensee from using any other system for reporting physicians’ services than its own one. It is obvious that even if Jilin University Press gained permission in the form of license, there could still be a monopoly.

As to the analysis of copyright misuse in the second instance, the court concluded that there was no sufficient evidence supporting the “monopoly” claim and, thus, the copyright holder did not violate the intellectual property right misuse provision in China’s Anti-Monopoly Law. It is clear that this court directly applied the Anti-Monopoly Law to address defendant’s copyright misuse argument without showing any possibility to include other bases of analysis, like public policy.

C. Disadvantages under China’s current system

    1. Misuse of “copyright misuse”

“Copyright misuse” is likely to be misused by parties and courts. In Jilin University Press case, Jilin University Press’s defense was that the copyright holder misused its right because to ask for cessation would constitute monopoly. Like other intellectual property rights, copyright is inherently monopolistic in nature. Only through lawful monopoly can a right holder protect its interests and can a society encourage cultural creation. What is prohibited is unlawful monopoly, like those exceeding the scope of copyright in DSC and Beijing Jingdiao Technology cases. Since Jilin University Press was unable to prove unlawful monopoly, the defense is unjustifiable.

Accordingly, if the legislature does not provide a provision of copyright misuse, “copyright misuse” will potentially be misused by parties. This may harm the interests of both copyright holders and alleged infringers, elevate the risk of power rent-seeking behavior, and waste judicial resources. Besides, courts may misuse “copyright misuse” as well when giving their reasoning. For instance, when addressing the defense of copyright misuse, the first-instance court in Jilin case did not clearly draw the line between proper exercise of the right and misuse of the right, but directly concluded that the conduct of copyright holder was appropriate.

    1. Unclear and unreasonable standard for anti-competition analysis

The standard for determining copyright misuse, which involves anti-competition conducts, is not unified or reasonable. In Jilin University Press case, it seemed that the court defined copyright misuse as a violation of Anti-Monopoly Law. However, in Beijing Jingdiao Technology case, the court merely included analysis of anti-competition in considering the copyright misuse. Because Jilin case was decided in 2015 and Beijing case in 2006, such inconsistency was probably caused by the fact that Anti-Monopoly Law was not enacted until 2008. Judging from the decision in Jilin case, it is possible that courts have been leaning towards requiring the extent to which the conduct in question has violated Anti-Monopoly Law to establish copyright misuse. If this is true, namely what legislature and judiciary want, then there will be further concerns arising out of dual mechanism of civil litigations and administrative enforcement.[49] For instance, measures taken by courts must coordinate with those taken by government agencies, in terms of filing a case and process of dealing with the case.[50] Because this needs more cost, the dual mechanism results in procedural inefficiency.

To conclude on this issue, there should be firstly a unified view over whether a violation of Anti-Monopoly Law is a prerequisite for a copyright misuse or not, and secondly a more reasonable view, which is the determination of copyright misuse is independent of that of violation of Anti-Monopoly Law.

    1. Lack of another justification based on public policy consideration

Certain copyright misuse conduct cannot be governed by the current system. Recall the scenario in Video Pipeline case. Although the court rejected the copyright misuse argument after concluding that the conduct by the copyright holder was not sufficiently significant and that the fair use doctrine could provide protection, it adopted an approach of analyzing copyright misuse different from that based on anti-competition conducts. What if the copyright holder did obstruct public expression to a significant extent and the alleged infringer cannot be protected by the fair use doctrine in China? With rapid development of the copyright industry, there will always be misuse by copyright holders which contradicts the purpose of the Copyright Law but cannot be prohibited by existing provisions. This is especially true when the conduct is not related to anti-competition.

III. SUGGESTIONS

In light of the problems mentioned above, I support making relevant amendments of China’s Copyright Law, a position supported by scholars.[51] Firstly, include the copyright misuse doctrine in Copyright Law as a miscellaneous provision to both standardize its use and maintain the balance between the rights of copyright holders, alleged infringers, and the public. Secondly, consider setting up a standard for determining whether there is a copyright misuse, abolish the requirement of violating the Anti-Monopoly Law, and rather adopt the analysis of mere anti-competition behavior. Last but not least, apart from the misuses involving anti-competition, the copyright misuse doctrine should also include an approach to identifying misuse on the basis of public policy considerations, namely, by analyzing whether the conducts hinder the promotion of cultural creation contrary to the legislative purpose of Copyright Law.

[1] U.S. courts also recognize such a basis: anti-monopoly violation analysis is similar to misuse analysis. See Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 971 (4th Cir. 1990).

[2] See 孙远钊 (Sun Yuanzhao), 版权的平衡与滥用:美国与国际发展的启示 [Copyright Balance and Misuse:  Enlightenment from U.S. and International Development], 版权、网络和权力平衡 [Copyright, Internet and Right Balance] (2016).

[3] Lasercomb, 911 F.2d at 971 (4th Cir. 1990).

[4] Id.

[5] Id.

[6] Id. at 978.

[7] Id.

[8] Id.

[9] The reason why Anti-Monopoly Law is mentioned here may lie in the fact that the Court recognizes that Ccopyright protection has monopolitic nature, as mentioned in Supra note 1.

[10] Lasercomb, 911 F.2d at 978 (4th Cir. 1990).

[11] Supra note 2. See also Kathryn Judge, Note, Rethinking Copyright Misuse, 57 Stan. L. Rev. 901, 904 (2004) (concluding that the relationship between misuses arising under violation of antitrust law and those under contradiction with public policy of copyright law, and “the degree to which competition policy underlies the public policy approach” “ha[ve] been a source of significant confusion”.).

[12] DSC Commc’ns Corp. v. DGI Techs., Inc., 81 F.3d 597, 601 (5th Cir. 1996).

[13] Id. at 599.

[14] Id.

[15] Id. at 601.

[16] Practice Management Information Corp. v. American Medical Ass’n, 121 F.3d 516, 517 (9th Cir. 1997).

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 521.

[21] Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191, 203 (3th Cir. 2003).

[22] Id.

[23] Id. at 206.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at 204.

[28] Under Fair Use Doctrine, copyrighted work can be used even without permission of the copyright holders or paying royalties. Its purpose is to ensure that copyright holder exercises control over the work expression, but the control will not extend to what is unprotected by Copyright Law. See 冯骁青 (Feng Xiaoqing), 著作权合理使用制度之正当性研究 [Study on Legitimacy of Copyright Fair Use], 现代法学 [Modern Law Science], volume 32, No. 4 at 29 (2009). “Copyright Misuse”, by its nature, prohibits copyright holder’s control beyond the lawful scope (scope defined by Copyright Law). So it shares common logic with Fair Use. This is the reason why Fair Use Doctrine is discussed here.

[29] General Principles of the Civil Law (2009 Amendment) prescribes “intellectual property rights” under Section 3 Chapter 5, which includes copyrights, patent rights, rights to exclusive use of trademarks, rights of discovery. This suggests that China categorizes intellectual property rights as civil rights. Besides, latter clause of Article 55 Anti-Monopoly Law of provides that “this Law shall apply to the conduct of business operators to eliminate or restrict market competition by abusing their intellectual property rights.”

[30] Minfa Zongze (民法总则) [General Provisions of the Civil Law] (promulgated by the Nat’l People’s Cong., Mar. 15, 2017, effective Oct. 1, 2017), art. 7 (China).

[31] Fan Longduan Fa (反垄断法) [Anti-Monopoly Law] (promulgated Article 55 of Anti-Monopoly Law of the People’s Republic of China by the Standing Comm. Nat’l People’s Cong., Aug. 30, 2007, effective Aug. 1, 2008), art. 55 (China).

[32] After all, copyright holder’s rights are lawfully obtained under Copyright Law. If there is no provision explicitly providing for “misuse” in Copyright Law, judges should be cautious to determine misuse of rights based on basic principles of Civil Law. A surpass of basic principles of Civil Law over copyright calls for a high quality legal interpretation, in order to achieve consistency in judiciary.

[33] For instance, in Beijing Chuangci Kongjian Media LLC v. Mu Deyuan et el., which is a case on appeal involving unfair competition, Beijing Intellectual Property Court, in order to apply Anti-Unfair Competition Law that was limited to competitors in the same industry to market participants from different industries, mentioned “severe violation of principle of good faith and adherence to honesty.” This suggests court’s reliance on the basic principles of Civil Law as indirect legal authority for reasoning, but the direct authority is Anti-Unfair Competition Law.

[34] See 杨明 (Yang Ming), 知识产权与反不正当竞争中的利益衡量 [Interest Balancing in Intellectual Property and Anti-Unfair Competition], 云南大学学报 [Journal of Yunnan University], volume 18, issue 1 at 48 (2005).

[35] Id.

[36] Id.

[37] See 最高人民法院印发《关于案例指导工作的规定》的通知(法发〔2010〕51号) [Notice of the Supreme People’s Court on Issuing the Provisions on Case Guidance] (issued by the Supreme People’s Court, Nov. 26, 2010, effective Nov. 26, 2010), art. 1 (China).

[38] See supra note 35, art. 7 (China).

[39] See 刘孔中 (Liu Kongzhong) & 张浩然 (Zhang Haoran), 最高人民法院知识产权法见解及其作成方式的评价与反思 [Comments and Reflections on the Supreme People’s Court’s Ways to Express Its Opinions on Intellectual Property Law], 知识产权 [Intellectual Property], issue 5 at 40 (2018).

[40] Id.

[41] See 最高人民法院印发《关于加强和规范裁判文书释法说理的指导意见》的通知(法发〔2018〕10号) [Notice of the Supreme People’s Court on Issuing the Guiding Opinions on Strengthening and Standardizing the Analysis and Reasoning in Adjudicative Instruments].

[42] 北京精雕科技有限公司与上海奈凯电子科技有限公司侵害计算机软件著作权纠纷上诉案 [Beijing Jingdiao Technology Co., Ltd. v. Shanghai Naikai Electronic Technology Co., Ltd.] (2006) 沪高民三(知)终字第110号, (Shanghai High People’s Ct. 2006) CLI.C.8709416 Chinalawinfo.

[43] Id.

[44] Id.

[45] See supra note 11.

[46] 刘孔中 (Liu Kongzhong), supra note 39.

[47] 最高人民法院发布2015年中国法院50件典型知识产权案例之二十六:吉林大学出版社有限责任公司等诉长春出版传媒集团有限责任公司著作权权属、侵权纠纷案 [Jilin University Press LLC v. Changchun Publishing & Media LLC] (2015) 吉民三知终字第68号, (Jilin High People’s Ct. 2015) CLI.C.8248705 Chinalawinfo.

[48] Id.

[49] Civil litigations here mean proceedings between private parties, for example, copyright holders and alleged infringer, based on Copyright Law or pertinent civil laws; administrative enforcement mean procedures where government agencies deal with unlawful monopoly under Anti-Monopoly Law.

[50] See 王先林 (Wang Xianlin) 论反垄断民事诉讼与行政执法的衔接与协调 [On the Connection and Coordination Between Anti-monopoly Civil Action and Administrative Enforcement], 江西财经大学学报 [Journal of Jiangxi University of Finance and Economics], issue 3 at 87 (2010).

[51] For example, after commenting on coordination between Intellectual Property Law and Competition Law, Professor Feng Xiaoqing states that, unlike developed countries which have well-organized laws in terms of anti-monopoly of intellatual property right, it is vital for China to protect against foreign countries’ companies from unlawfully exercising controls over Chinese markets by leveraging intellectual property rights is vital. See 冯晓青 (Feng Xiaoqing), 论知识产权法与竞争法在促进有效竞争方面的平衡与协调 [On the Balance and Harmonization in the Promotion of Effective Competition as to Intellectual Property Law and Competition Law], 河北法学 [Hebei Law Science], issue 6 at 48 (2008). 

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