Copy what?

We watched a copyright trial in Haidian district court on Friday. The case concerned a series of textbooks designed to teach Chinese characters to elementary school students. The books were quite special, however, in that the author based them upon ancient rhymes and songs dating as far back as the Song dynasty; the plaintiff created about 300 lessons (called "articles" by our translator) from ancient Chinese works so that students would, for all practical purposes, be learning the same lessons as their predecessors did hundreds of years ago, though in modern Chinese. Unfortunately for the small-time author from Inner Mongolia, however, the largest academic publisher in China decided to copy his books almost in their entirety. So the author sued the publisher, the printer, and a local book-seller, but not the infringing author. (More on that later)

The trial was unlike anything I had witnessed. Before the judges came in, the clerk announced that we could not move from our seats once the trial commenced, and that any violators would be arrested by the Public Security Bureau. (So none of us got up to use the bathroom during the trial, not even once, despite the fact that the bailiff spent the majority of the trial sleeping.)

Then the three judges came in: Intellectual Property Tribunal Presiding Judge Song Yushui, another female judge who looked to be about 29, and an older gentleman serving in the role of a People's Assessor. The system of People's Assessors is borrowed from Russian law, and involves the inclusion of lay people on three-judge panels. People's Assessors have all the same rights as judges, but are drawn from the general public. Unbeknownst to us, however, we were sitting in the presence of greatness.

Song Yushui is quite a celebrity in China, and is acknowledged to be the ruling expert on intellectual property within the Chinese judiciary. They've even done a movie about her. But it turns out that she graduated from Renmin University's law school, so I guess nobody's perfect.

In any event, the trial proceeded in several stages, detailed in articles 120-128 of The Law of Civil Procedure of the People's Republic of China. First the parties presented their evidence, which mostly consisted of reading from their court filings. Then they presented their arguments, which mostly rehashed the presentations of the evidence, and involved some more reading from the court filings. Then the judges questioned the parties, in particular focusing upon the measure of damages employed by the plaintiff. (The plaintiff's counsel insisted that she had multiplied the defendants' profits, 25K RMB, by five, with the result that they she requesting 60K RMB in damages. Huh?) Finally, Judge Song asked the parties if they would agree to mediate, at which point the plaintiff made a final settlement offer to the defendants, which they rejected. At that point, the trial was over, the judges left, and we proceeded out of the court room for pictures.

Beyond the plaintiff's lawyer proving the joke about attorneys not being able to do mathematics, there were several interesting aspects to the case. First, only one of the three defendants brought trial counsel--the other two represented themselves, and quite ably at that. Second, the "author" of the infringing works had not been joined to the suit, which allowed the plaintiff to claim that she was simply a fabrication of the publisher, created to deflect attention. (In other words, in order to evade liability, the publisher created a fictional person whose existence they refused to prove in court) Third, both the printer, the book-seller, and the publisher all claimed to have destroyed any of the infringing copies, and refused to produce adequate sales records. Fourth, the book-seller could not stop nervously giggling throughout the trial, which definitely tipped the scales against her. Fifth, the defendants tried to claim that their version of the work did not infringe the plaintiff's copyright in the lessons, because they had changed accompanying pictures and the packaging for the textbooks. Finally, they inconsistently claimed that while the lessons were in the public domain by virtue of their derivation from ancient Chinese works, they nevertheless had not infringed the plaintiff's books because the defendants had added different pictures and changed 4 out of the 300 lessons involved. So, we could tell which party would prevail about 20 minutes into the proceedings.

All in all it was a great field trip. But the best part may have been when a guy in a suit walked up to us outside of the courthouse, tapped us on the shoulder, and asked us in broken English if we needed legal services. I really hope he didn't graduate from BeiDa.