I. Questions raised
The plaintiff TX Investment Consultants Co., Ltd. (TX Investment) mainly provided securities consultation and research services, and one of its products was securities analysis reports. TX Investments granted Beijing TX Tonghe Information Technology Co., Ltd. (TX Tonghe) the right to reproduce, distribute and communicate the securities analysis reports as concerned in the case within the TX Securities Analysis System and other products or operations through the information network. The defendants Shanghai Wind Information Co., Ltd. (Wind Information) and Shanghai Wind Investment Management Co., Ltd. (Wind Investment) competed against the plaintiffs in the same industry. The defendant Wind Information published, in the “Real View Winner Data” module of its “Wandian Financial Management Terminal” software, 147 pieces of securities analysis summary reports belonging to the plaintiff TX Investment. These reports were abridged, more or less, by keeping the original wording and the main body, including generally the title, conclusion, earnings forecasts and risk reminders. Among them, 4 reports were transcriptions of publicly available reports from the plaintiffs, and did not contain any analyses or comments. The defendant Wind Investment also provided a web linking service for these reports. The reports could be accessed and browsed from third-party websites, but only some of the previous reports of the plaintiffs other than any current reports of the day could be searched. The plaintiffs argued that the defendants had acted to infringe upon their copyright and damaged their trade secrets in the reports concerned. Therefore, they brought a lawsuit in Shanghai No. 1 Intermediate People’s Court, requesting an order that the defendants shall cease from infringing upon the plaintiffs’ copyright and trade secrets, make apologies and pay compensation of 2,220,000 yuan for the financial loss that the plaintiffs had sustained.
After the hearing, the court held that the securities analysis reports of the plaintiffs were original and should be protected by the copyright law. Among them, however, the 4 reports, which were transcriptions directly from the information publicly available from public companies, were not original and ineligible for the protection. The court ruled that the defendants shall cease the infringement and compensate the plaintiffs 104,500 yuan for the financial loss and reasonable costs suffered or sustained by the plaintiffs. Disagreeing with the judgment, the plaintiffs appealed and Shanghai High People’s Court affirmed the first-instance judgment.
The questions that the case is concerned with are: can a securities analysis report be deemed original? Does it form a work under the copyright law? If it satisfies the constituent requirements of a copyrighted work, will it demand any special considerations, as compared with copyrighted works in general, in infringement determination and payment of damages?
II. Originality determination by the judiciary
As a basic rule of the copyright law globally, a work that is eligible for copyright protection needs to be original. To be original means to be original in expression other than an idea, which is dominated by the fundamental principle that the copyright law protects expressions instead of ideas. If a work has only one expression or a finite number of expressions, the expression and the idea are united into one and thus not protected by the copyright law. It is accepted generally that the originality of a work has two components: one is that the work must be created and completed by the author independently, without plagiarizing another person’s work; the other is that the work must be expressed in a creative way. In the judicial determination of originality, controversy has been on the criteria or standards for judging the level of originality.
In this respect, the Supreme Court of the United States noted in the Feist case that originality not only means that a work was created by the author independently, but also that it possesses a minimal degree of creativity. A compilation of facts, as long as they are creatively selected and arranged, may be a work protected by copyright. In Germany, a higher standard is applied for an originality judgment in general. The Federal Court of Justice once stated in a case that a work must surpass a certain degree of creativity in order to overtake those commonly and manually made things. Also it adopts different originality standards for different types of works. In China, although legislation provides that a work has to be original before it can be protected by copyright, the law fails to specify any standard applicable for originality determination, causing difficulties in judicial practice.
In recent years, the courts have tended to hold that a work only has to satisfy a minimum degree of creativity. In copyright-related cases involving job descriptions, face paintings or lesson plans, which contain relatively fixed contents, as, by way of example, a job description generally describes the requirements of educational backgrounds or work experiences for potential applicants, or a face painting of Peking Opera usually has fixed styles or color patterns, these works are less original than a literary work. Despite these common elements, instead of applying a higher standard, the judges hold that these works still leave room for creativity in expression, so that the creative contents should be protected by the copyright law. Although with respect to the level of originality, various views on applicable standards have their respective theoretical bases, it is very practical to protect works with a low degree of originality. With time, there are some works that may develop less original expressions, but may still contain high economic or social value. If such works were not protected, it would encourage plagiarism, discourage the authors or even impact the growth of related industries.
