SHANGHAI, China, Aug. 1 /Xinhua-PRNewswire/ -- On July 17, 2007, Entertainment-Base of China ( http://www.5fad.com ; “5fad”) undertook prosecution procedures against Baidu, in the Beijing Higher People’s Court, demanding that Baidu should stop providing illegal links to more than 1,000 MP3 songs, of which 5fad owns the respective copyrights. The compensation claims total RMB100 million, and this is now the largest copyright dispute case in China.
Information About 5fad:
1. 5fad currently has 1,386 copyrights for original songs, with this
number expected to reach 5,000 by the end of 2008.
2. The Company’s headquarters and branches own an exclusive team which
constitutes 300 musicians and video producers and nearly 100 internet
technical staff.
3. 5fad has contracts with 1,725 performers. 20 of them are considered
“star performers.” These include:
-- Tang Jiali whose works include “Huanzhu-Princess 3,” “The
Kangxi Dynasty” and other renowned TV dramas.
-- Hu Dong, who is considered one of the ten world’s top models.
Works include “Joyful Zhu Bajie”, “Legendary Heroes” and
other TV dramas.
-- Jin Qiaoqiao: a famous film star. Works include “Journey to the
West (the sequel),” “Swallow Li San,” and other dramas.
-- Sha Yi: a famous film star. He has starred in “Round Rumor,”
“The Story of the Kitchen Squad” and other TV dramas.
-- Yi Xin: a pop star. He has seen many album sale successes,
including “Not to be a Man in My Next Lifetime.”
4. In the first half of 2007, 5fad’s outstanding achievements grew quickly:
a growth rate of over 300% compared to the same period last year.
5fad plans to sign 100 additional heavyweight stars before the end of
2008 and to become a new digital entertainment and cultural enterprise
through the three characteristic platforms: music content, production
and internet technology.
Details Concerning the Case:
5fad believes that the MP3 links on Baidu are a violation, without the protection of the Safe Havens Principle. Users can freely listen and copy songs through Baidu without going to the linked sites and paying a purchase price. This behavior is a power owned by the copyright owner, or must be agreed upon by the right owners. Baidu seized resources and became the content providers. 5fad can see the tort facts are clear.
In Baidu’s opinion, according to the “Network Information Transmission Right Protection Acts”, Baidu do not upload, preserve and edit. When Baidu received the right owner’s notification, as long as they can delete or disconnect the infringed song’s link, it would not assume liability for tort. At present, there’s no clear definition about the tort of MP3 searches according to Chinese law.
From the beginning of 2007, 5fad issued a total of 25 letters to Baidu, with a total number of pages exceeding over 8,000, and provided the list of copyrighted songs and sites on the basis of the “Protection Act,” requiring Baidu to disconnect these songs’ MP3 links. However, as of July 2007, there were still thousands of 5fad’s copyrighted song links on Baidu. Therefore, 5fad prosecuted Baidu on July 17 at the Beijing Higher People’s Court following the notarization and preservation of the evidence.
The Expected Outcome of the Proceedings:
-- Yahoo!’s copyright dispute case: in April 2007, in the case of Universal Records and 11 other record companies that sued Yahoo! China for
infringement, Beijing Second Intermediate People’s Court undertook
the first such trial. The judge ordained that Yahoo! lost the
lawsuit, forcing them to delete 229 songs from their site --
The nature and entire process of this case is the same as Yahoo!’s. Therefore, analyzing in accordance with the “Network Information Transmission Right Protection Acts” and Yahoo!’s loss; the probability of 5fad winning is relatively high. As the Beijing Second Intermediate People’s Court jurisprudence is not the judgment, it’s normal if the first trial is different from Yahoo!’s case. Only the second instance trial of the Supreme People’s Court is the prejudication and can become the legal instruments, thereby making the legal definition of what is law perfectly clear. So, the focus of this case is the second trial, as well as the Chinese Internet copyright protection milestone.
Suppose if Baidu lost, the MP3 search may therefore close; the professional photo search, similarly, could also be closed. Once these professional searches, which can bring huge traffic flows are stopped, the future of Baidu will have received a major impact.
What if 5fad loses? The profit model that digital music charges for downloads will not be realized in China at this time.
