Despite Google’s victory in the United States in the Google Books battle, which took place in 2005 with a US circuit judge accepting Google’s argument that making 'snippets' of text of books online constituted fair use, the Chinese courts have ruled otherwise. Recently Google was ordered to cease all acts of copyright infringement and to pay Rmb6,000 to Chinese author Mian Mian in damages and costs.
In October 2009 Google was sued by Mian for adding her book, Acid Lovers, into the Google Books database without her permission. Mian sought damages of Rmb61,000 and a public apology from Google. As soon as Google learnt of the lawsuit, it removed her book from the database.
The Beijing No 1 Intermediate People’s Court held that Google’s dissemination to the public of snippets of text online fell within the fair use exception. However, the act of scanning the text of Acid Lovers to create the snippets was an act of copyright infringement. Google appealed on the grounds that the creation of the snippets constituted fair use and, since the act of infringement was conducted in the United States, that was the correct jurisdiction for the case.
The Beijing Higher People's Court dismissed the appeal. In reaching its decision, the court considered factors including the following:
- Use of a copyrighted work may be considered to be fair use if the circumstances so warrant, even if such use does not fall within the acts specified in Article 22 of the Copyright Law.
- A claim of fair use outside the acts set out in Article 22 should be allowed only in exceptional circumstance. In assessing whether such exceptional circumstances exist, all factors must be taken into account, including the intention and type of use, the nature of the work being protected, the proportion of the work being used, whether such use has affected the normal use of the work and whether such use will unreasonably damage the legal rights of the copyright owner.
- The burden of proof as to whether such exceptional circumstances exist rests with the user.
Google failed to provide the appeal court with sufficient evidence to prove that its use constituted exceptional circumstances. Therefore, the appeal court upheld the lower court's decision.
This decision may set a precedent for similar future cases in China. It will be interesting to see whether other Chinese authors follow Mian's example by suing Google in light of the decision.
Mena Lo, Jacqueline Man Ting Ko
This article first appeared in IAM magazine. For further information please visit www.iam-magazine.com.