VII.Evidences for Intellectual Property Litigation

35.Qualification of Evidences，Investigation and Determination of Certification for the Ownership of a Copyright Issued By the Institution Without Copyright Certification Qualification

In cases of infringement upon the copyright of overseas work，the concerned party always presents the certification of copyright ownership issued by the resident office of the foreign copyright certification institution in China as evidence to prove that it enjoys the relevant rights to the overseas work.Courts have different opinions about the probative value of such evidence.

In the copyright infringement dispute case of Guangdong Zoke Culture Development Co.，Ltd.（hereinafter referred to as Zoke Company，retrial petitioner）v.Shijiazhuang Zhanshen Legend Cybercafe（hereinafter referred to as Zhanshen Cybercafe，respondent）［（2009）MSZ No.127］，the SPC defined that Beijing Office of the South Korea Copyright Review and Intermediation Commission could only conduct liaison activities for copyright certification，but was not qualified for certifying the ownership of copyright.The ownership of the copyright of overseas work should be determined in combination with legal publication and other evidences.

The basic facts of the case are as follows：Zoke Company and Korea Munhua Broadcasting Corporation（MBC Corporation）were the copyright owners of the TV seriesGoong S.MBC Corporation granted Zoke Company the exclusive right to information network dissemination and other relevant rights and interests in Mainland China.However，Zhanshen Cybercafe，without their permission，saved the TV series in its server for loading by the public，which infringed upon legitimate rights and interests.Zoke Company filed a lawsuit and provided certification issued by Beijing Office of the South Korea Copyright Review and Intermediation Commission as evidence to prove that MBC Corporation enjoyed the copyright of Goong S.In the first instance，Shijiazhuang Intermediate People's Court of Hebei Province held that the certification issued by Beijing Office of the South Korea Copyright Review and Intermediation Commission could not prove that MBC Corporation enjoyed the copyright of Goong S，and dismissed the claims of Zoke Company.The latter then filed an appeal.In the second instance，the High People's Court of Hebei Province upheld the ruling of first instance for the same reason.Against the ruling of the second instance，Zoke Company filed an appeal to the SPC for a retrial.The SPC delivered a ruling on May 19,2009，ordering the High People's Court of Hebei Province to retry the case.

Through review and investigation，the SPC held that Beijing Office of the South Korea Copyright Review and Intermediation Commission could only conduct liaison activities for copyright certification，but could not be qualified for certifying the ownership of the copyright of overseas works in accordance with the Measures for Administration of the Permanent Offices of Foreign Copyright Certification Organs in China.Nevertheless，the certification issued by Beijing Office of the South Korea Copyright Review and Intermediation Commission provided by Zoke Company was only provided as one of evidences for the ownership of the copyright of Goong S.In addition to judging its probative value，a court should pay attention to the legal video recording，approval sheet for imported video recording，rights ownership certificate and other evidences provided by Zoke Company in judging the ownership of the copyright of the involved work.The courts of the original instances failed to make a proper cross-examination and attestation of the aforesaid evidences，and it was incorrect for the claims of Zoke Company to be dismissed on the grounds that the certification issued by Beijing Office of the South Korea Copyright Review and Intermediation Commission had no probative value.

36.Judgment and Determination of the Subject of Rights and the Facts of Infringement Acts in the Cases of Infringing upon the Rights of Producers of Phonograms

In disputes over the infringement of the rights of producers of phonograms，it is relatively hard to prove the establishment of infringement acts due to the complexity of the rights owners of audio and video recording and the complexity of the infringement acts.

In the neighboring rights infringement dispute case of Maoming（Shuidong）Jiahe Technology Development Co.，Ltd.（hereinafter referred to as Jiahe Company，retrial petitioner）v.Beijing Tianzhong Culture Development Co.，Ltd.（hereinafter referred to as Tianzhong Culture Company，respondent），Zibo Jindi Shopping Plaza Co.，Ltd.（hereinafter referred to as Jindi Shopping Plaza，defendant in original trial）and Liaoning Radio and Television Publishing House（hereinafter referred to as Liaoning Publishing House，defendant in original trial）［（2008）MSZ No.453］，the SPC clarified the judgment and determination of the facts of subject of rights and acts of such cases.

The basic facts of the case are as follows：Tianzhong Culture Company enjoyed the neighboring rights to nine programs in the music album CD Lily sung by Sun Yue.On April 27,2006，Tianzhong Culture Company purchased an infringing VCD in Jindi Shopping Plaza and obtained the sales invoice for the‘VCD disk’issued by the same.The outer color-printed packaging of the VCD clearly stated‘Top Star and Peerlessly Exquisite’，the disk core VI stated‘Sun Yue B’and the disk cover indicated the names of the songs，including nine programs sung by Sun Yue.According to the original identification code and publication code of the VCD，it was reproduced and distributed by Jiahe Company and Liaoning Publishing House.Tianzhong Culture Company sued Jiahe Company and Liaoning Publishing House for infringement upon its reproduction and distribution rights and sought a judgment ordering the infringing parties to cease the sales of the infringing VCDs and compensate for economic losses.In the first instance，Zibo Intermediate People's Court of Shandong Province judged that Tinazhong Culture Company enjoyed the neighboring right of the said nine programs，and the sales invoice for‘VCD disk’issued by Jindi Shopping Plaza could suffice to prove that the allegedly infringing disk was purchased there.Although the allegedly infringing disk was a VCD and the programs of Tianzhong Culture Company were recorded on CD，the same audio source can be converted into other formats.The allegedly infringing VCD indicated that those nine programs were sung by Sun Yue，which was the same as the claim of Tianzhong Culture Company.As Jiahe Company and Liaoning Publishing House failed to provide evidences to prove that the involved songs were sourced legally，the court held that the nine programs on the allegedly infringing VCD came from the same audio source as those on the music album CD Lily by Sun Yue.The allegedly infringing VCD indicated the name of the Liaoning Radio and Television Publishing House，and its SID code‘ifpi v103’was owned by Jiahe Company.Furthermore，the Liaoning Publishing House failed to present evidence to prove that it had been authorized legally，and Jiahe Company failed to provide evidence to prove that the allegedly infringing VCD was reproduced by others or any evidence to prove that it should be exempted from the corresponding liability.The three defendants had undoubtedly infringed upon the neighboring rights of Tianzhong Culture Company.As such，Zibo Intermediate People's Court of Shandong Province ordered Jiahe Company and Liaoning Publishing House to compensate Tianzhong Culture Company for economic losses of RMB 225,000.Against this ruling，Jiahe Company filed an appeal.In the second instance，the High People's Court of Shandong Province dismissed the appeal and reaffirmed the original ruling.Jiahe Company refused to accept the judgment of the second instance and filed an appeal to the SPC for a retrial.The SPC delivered a retrial judgment on May 19,2009，dismissing the appeal.

Upon review and retrial，the SPC held that Tianzhong Culture Company had provided the two copies of Cooperative Agreement signed with Yuezhisheng Company，the guarantee certification issued by Sun Yue and the legal publication music album CD Lily by Sun Yue to prove it enjoys the neighboring rights of the involved programs.According to the said agreement，guarantee certification and copyright management information in the legal publication，it could be determined that Tianzhong Culture Company enjoyed the neighboring rights of the involved nine songs.Whether Tianzhong Culture Company held the License for the Manufacture of Audio and Video Products was irrelevant to its performance of the right of action.Tianzhong Culture Company provided the allegedly infringing VCD and sales invoice issued by Jindi Shopping Plaza，so it could investigate and check whether the sales invoice could be taken as evidence proving that Tianzhong Culture Company had claimed its right according to the facts of the case.Jindi Shopping Plaza had no dissidence with the authenticity of the sales invoice，but claimed that the sales invoice could not necessarily match the allegedly infringing VCD；however，the burden of proof should be assumed by Jindi Shopping Plaza.As to the problem of whether Jiahe Company should bear the liability for the infringement，the copyright management information in the allegedly infringing VCD could prove that the VCD was published and distributed by the Liaoning Publishing House，and reproduced by Jiahe Company.In the original trial，Jiahe Company and Liaoning Publishing House filed a plea asserting that the nine songs in the allegedly infringing VCD were downloaded from a website and not reproduced from the CD of Tianzhong Culture Company，but they failed to provide relevant evidence and thus the plea was indefensible.

37.Investigation and Determination of the Authenticity of Certain Evidence After the Concerned Party Gives Up the Application of Evidence Identification

People's courts are always vague about how to investigate and determine the authenticity of certain evidence and whether it can directly deny or recognize the authenticity of such evidence when the concerned party gives up to apply for authentication，after which is deemed as giving up the authentication due to its failure to pay the authentication costs.

In the patent exploitation license and technical service contract dispute case of Shenzhen Shuoxing Traffic Electronic Devices Co.，Ltd.（hereinafter referred to as Shuoxing Company，retrial petitioner）v.Yuhuan Longzhong Locomotive Spare Parts Co.，Ltd.（hereinafter referred to as Longzhong Company，respondent）［（2009）MSZ No.1325］，the SPC held that the authenticity of evidence，without being subject to judicial identification，could be determined in line with their sources，formation and objective status，and in combination with other evidences.The authenticity of evidence could not be directly denied on the grounds that the concerned party had given up the authentication.

The basic facts of the case are as follows：on July 21,2006，Shuoxing Company and Longzhong Company entered into the Patent Exploitation License and Technical Service Contract（Contract），specifying that Shuoxing Company had granted the license for three patents，including a stator formed by motor winding，to Longzhong Company，and guaranteeing that it will help Longzhong Company to make the products meet inspection standards within a given period.After the Contract was signed，Longzhong Company paid the first and second installments of the RMB 100,000 patent royalty in succession.After that，Shuoxing Company provided Longzhong Company with technical materials and guidance，and the latter employed the three patents and began production.In the trial production stage，Longzhong Company entrusted Lida Precision Molds（Shenzhen）Co.，Ltd.（hereinafter referred to as Lida Company）to make and improve the mold.Until the first instance，both parties failed to conduct inspections and issue written inspection and acceptance certification as stipulated in Article 6 of the Contract.Shuoxing Company lodged a lawsuit to the court on the grounds that it had not received the third installment of the patent royalty，and requested the court to order the defendant to pay the third installment of the patent royalty，molding costs and improvement expenses.Shuoxing Company presented the working notes of Shen Huaisheng，former employee of Longzhong Company，as one of its major bases to claim the right，and requested the court of first instance to authenticate the working notes.In the first instance，Taizhou Intermediate People's Court of Zhejiang Province held that Shuoxing Company applied for the authentication of the working notes but refused to pay the authentication costs，which could be regarded as giving up the authentication.Furthermore，Shen Huaisheng did not appear in court as a witness，so the source of the working notes could not be identified.Thus，the court was unable to verify the authenticity of the working notes.As such，the court dismissed the claims of Shuoxing Company.However，Shuoxing Company refused to accept the judgment of the first instance and filed an appeal.In the second instance，the High People's Court of Zhejiang Province held that Shuoxing Company had not paid the authentication costs in advance，so it was not improper for the court of first instance to accordingly cancel the entrustment of authenticating the working notes as it was unable to verify their authenticity.Shuoxing Company failed to present sufficient evidences to support its claims，and the court dismissed the appeal.Against the second instance judgment，Shuoxing Company filed a petition to the SPC for a retrial.In the retrial，the SPC recognized the authenticity of the working notes in combination with other evidences，judged that the molds used by Longzhong Company were actually owned by Shuoxing Company，and ruled that Longzhong Company had failed to produce eligible products meeting the customers’demand under the guidance of Shuoxing Company.The precondition in which Shuoxing Company asked for the payment of the third installment of the patent royalty had not been satisfied.Based on the aforesaid findings，the SPC made a retrial judgment on December 28,2009，dismissing Shuoxing Company's appeal for retrial.

Through investigation and review，the SPC found that the working notes of Shen Huaisheng recorded the production situations of Longzhong Company from July 13,2006 to January 23,2007，the time and contents of the working notes were interlinked without obvious discontinuity，and they matched and echoed the other evidence submitted by Shuoxing Company.Furthermore，Shuoxing Company and Longzhong Company both admitted that Shen Huaisheng was a former employee of Longzhong Company，Shuoxing Company submitted the originals of the working notes during the retrial hearing，and Longzhong Company presented no evidence to prove that the working notes were fabricated.Therefore，the SPC held that it could recognize the authenticity of the working notes and the contents therein.