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Manage your Intellectual Property in Mainland China, HongKong, Macao and Taiwan

Licensing Infringement

Background
After several weeks of negotiation, a European artist authorised a Chinese publishing company to commission a book of paintings and art work. By way of an editing contract, a reproduction licensing right was granted to the editor. The editor failed his responsibilities under the agreement and did not produce the book within the agreed 18 month time frame. They did however post some of the materials on their website without citing the original artist’s name.

 

Action Taken
The artist claimed that the editor had breached the editing contract as no literary work had been produced and the materials provided on the website had been reproduced without his authorisation. In order for the infringement to cease, a written notice was sent to the editor as well as to the Internet Service Provider notifying them that:

  • failure to state the artist’s name beside the reproduction of the work was an infringement of the moral rights of the author, and
  • posting online copyrighted materials was an infringement of the economic rights of the artist.

The notice specified that failing to comply with the requirements would result in the artist taking legal action (which must be taken within two years from the date of acknowledgment of the infringement). Considering that the publisher was unable to produce evidence that the reproduction was lawfully authorised, he was legally liable. The artist requested compensation for the moral and economical damages suffered.

 

Outcome
Upon receipt of the notice, the editor removed the litigious content and a negotiation for the amount of compensation took place, resulting in an out of court settlement of a total amount of RMB 40,000.

 

IP Lessons
In this case, compensation was agreed upon, based on the actual breach of the editing contract for failure to perform a contractual obligation and on the infringement of the moral rights.

  • Leverage all aspects of your previous relationship with an infringer to ensure a positive outcome