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On April 28, 2022, the People’s Court of Shanghai Putuo District (hereinafter referred to as “Shanghai Putuo Court”) held an online press conference to release The White Paper on Judicial Trial of Cases of Intellectual Property Disputes Involving Cultural and Creative Industries (hereinafter referred to as the “White Paper”) and related typical cases. At the press conference, officials from the people’s court, intellectual property office, culture and tourism bureau and other functional departments of Putuo District, experts and scholars from the intellectual property field, deputies of the Putuo District People’s Congress, and representatives of national key parks and cultural and creative enterprises engaged in new business formats gathered on the “cloud” to discuss topics of compliance governance and prompt mechanism building for risk prevention and control, working together to build a grand pattern of intellectual property protection.
The White Paper has three major characteristics. Firstly, it is based on the “whole chain” of intellectual property creation, application, management and protection, covering every life cycle. Secondly, it has “full coverage” over the core elements of intellectual property rights, including copyright, trademark, patent, trade secrets and other aspects. Thirdly, it comprehensively alerts intellectual property risks in cultural and creative industries from the perspectives of rights confirmation, ownership, infringement and contracting. Fourthly, it puts forward suggestions for risk prevention and control across the “whole process”, ranging from awareness strengthening and rights layout to early warning of risks and rights protection strategies.
At the press conference, Liu Yaling, Vice President of Shanghai Putuo Court, summarized the status of the judicial trial of cases of intellectual property disputes involving cultural and creative industries in the past three years in Putuo District, and made a basic introduction to the White Paper.
The White Paper reveals several salient characteristics of the cases handled by Shanghai Putuo Court in cultural and creative industries in the past three years. “High percentage”: from 2019 to 2021, the court accepted to handle a total of 4,902 intellectual property cases involving cultural and creative industries, accounting for 37% of all the intellectual property cases it handled during the period. “Fast growth”: with the increasingly buoyant development of cultural and creative industries, there had been a substantial increase in the number of cases involving new business formats and new business models such as digital technology and industrial integration. “Wide distribution”: with the deep integration of the Internet and cultural and creative industries, there was a trend of more cyberspace infringement cases and a broader range of other types of cases. “Batch cases”: there were a batch of cases involving cultural and creative enterprises who had pictures, music, and film and television creation as their core business, and the overall proportion of case mediation and withdrawal was high. “Concentration”: difficult and important cases were mainly concentrated in the categories such as games and short videos and involved in infringement disputes arising from the digital economy and new business models. These cases involved not only the authentication of works, the determination of infringing acts, and the judgment of multi-subject tort liabilities, but also such focal issues as conflict of rights, balance of public interests, and data and information security. At the same time, licensing contracts and development and creation contracts were also prone to causing major disputes in terms of some cultural and creative achievements.
The White Paper presents an analysis of the specific causes of some common cases. Weak awareness of rights protection restricts the development of cultural and creative resources: If cultural and creative enterprises do not adequately protect their creative results and business logos, it is easy to cause ownership disputes. Inadequate awareness of self-owned rights over compliant works is prone to leading to the improper use of other people’s intellectual property fruits and the making of illegal profits. Insufficient awareness of risk prevention hinders the industrialization and utilization of intellectual property rights: In the process of making intellectual property transactions, enterprises should fully review and discover rights defects in advance, strengthen the evaluation of foreign laws and policy differences, refine contractual agreements and adopt other measures to prevent legal risks. All these are vital to the operation of cultural and creative enterprises. Lack of overall management capabilities affects the collaborative layout of intellectual property elements: In the actual operation of cultural and creative enterprises, both lack of continuous and effective operation management of business marks and inadequate control over trade secrets will affect the market expansion and upgrading of cultural and creative products. Enterprises need to improve their ability to safeguard rights and strengthen the protection of their intellectual property rights: Cultural and creative enterprises may start with multiple remedial measures to enhance their ability to protect against intellectual property risks, and proactively carry out scientific evaluation of the potential loss of creative results and appropriately defend their rights after infringement is found.
The White Paper provides special risk control guidelines for the four critical periods of intellectual property rights. “Making a good start” in the creation period: In the early stages of intellectual property creation, enterprises must enhance their awareness of rights ownership, implement categorical policies and make early layout, so as to create high-quality intellectual property elements. “Promoting turnover” in the application period: In the initial stages of intellectual property trading, enterprises should focus on making reviews and setting forth detailed provisions and strive to promote the safe and efficient transfer of rights and efficiently increase the value output of intellectual property rights. “Carrying out good follow-up work” in the management period: In the middle of intellectual property rights execution, enterprises should promote the integrated implementation of static management and dynamic tracking, and build a collaborative management system that extends from individual points to wide coverage. “Building a strong defense line” during the protection period: In the late stages of intellectual property protection, enterprises need to improve their mechanisms of early warning against and assessment of infringement risks, as well as diversified remedial and protective means, and promote the healthy and orderly development of cultural and creative industries.
At the press conference, Shanghai Putuo Court released ten typical cases of intellectual property protection it has handled involving cultural and creative industries. These are cases which have typical risks and demonstrative judicial rulings, including the “Thomas” Small Train Art Work Rights Protection Case, the ICICLE Garment Device Rights Protection Case, the “Abacus and Mental Arithmetic” Textbook Rights Protection Case, the Case of Video Platform’s Infringement on “Orient 110” Program’s Cyber Rights, the Kunqu Hand-painted Work Shareholding Investment Dispute Case, the Panda Live Studio Revenue Sharing Dispute Case, the Commissioned Audio/Video Work Creation Dispute Case, the “Script Kill” Pre-Litigation Injunction Case, the Online Game Rights Maximum Compensation Case, and the Criminal Case of Trade Secrets Infringement against Software Source Code Developer.
At the press conference, Shanghai Putuo Court said that it will continue to implement the relevant decisions and plans of the CPC Shanghai Municipal Committee, Shanghai High People’s Court and the CPC Shanghai Putuo District Committee, further leverage the role of judicial protection of intellectual property rights, constantly strengthen the protection of intellectual property rights through judicial means in key industries, strengthen coordination with relevant functional departments and industry associations, deepen the court-university cooperation mechanism, explore more innovative judicial measures, and provide higher quality and more efficient judicial services for intellectual property protection to boost local economic and social development.
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