Nature of Letters and Manuscripts, Manuscript Auction and Preliminary Injunction for Copyright

——Yang Jikang v. Sungari International Auction Co., Ltd. 

[Syllabus]

Private letters, as a carrier to communicate human feelings and exchange ideas, usually are written works independently conceived and created by the sender, which shall be deemed as the works created by the sender. In absence of contrary evidence, private letters shall be protected by the Copyright Law of China. 

Although a receiver has obtained the real right to the letters and manuscripts, it shall be exercised in a manner that does not infringe upon the copyright of the sender. The publication of the letters and manuscripts against the will of the copyright holder or any of his successors constitutes an infringement upon his copyright. 

In general, infringement relating to the personality rights of copyright would result in personality and spiritual harm. As such kind of aggrieved state is irreversible, it is difficult to completely recover the damages resulting from infringement upon the personality rights of copyright through monetary compensation or non-monetary compensation. Besides, the publication right of the writer is the basis and guarantee for the exercise and protection of other related rights. Once the work is published against the writer’s will, it might make copying and issuing of the work fall out of the writer’s control as well. Therefore, despite the objection of the writer, explicitly declaring the exhibition of the work in public constitutes an infringement upon the publication right, which fulfill the requirement-- “failure in timely deterrence of such infringement will cause irreparable harm to the right holder”--for granting a preliminary injunction. The court shall, upon request by the right holder, grant the preliminary injunction.

[Case No.] Beijing No. 2 Intermediate People’s Court (2013) EZMCZ No. 09727

[Cause of Action] Dispute over preliminary behavior preservation of infringement upon copyrights

[Collegial Panel Members] Zhang Jian  Yang Jing  Liu Juan

[Keywords] Letters, real right, copyright, privacy right, auction, pre-action injunction

[Relevant Legal Provisions] Item (1), paragraph one of Article 10, paragraph one of Article 19, paragraph one of Article 21, and Article 50 of the Copyright Law of the People’s Republic of China, Article 17 of the Regulation on the Implementation of the Copyright Law of the People’s Republic of China, Articles 10 and 11 of the Law of Succession of the People’s Republic of China, Articles 100, 101 and 108 of the Civil Procedure Law of the People’s Republic of China, and paragraph two of Article 30 of the Interpretation of the Supreme People’s Court Concerning the Application of Laws in the Trial of Civil Disputes over Copyright.

[Basic Facts]

The applicant Yang Jikang (pen name: Yang Jiang, a famous writer and translator) is the wife of Qian Zhongshu (deceased, a famous writer and researcher in literature), and they had a daughter named Qian Yuan (deceased). The respondent Li Guoqiang is the former editor in chief of a monthly publication titled Wide Angle. After Li Guoqiang was acquainted with Qian Zhongshu in 1979, he become close friends with Qian Zhongshu, Yang Jikang, and their daughter Qian Yuan and they wrote to each other frequently. The Qians’ letters have been kept by Li Guoqiang.

In the May of 2013, the respondent Sungari, a comprehensive auction company, announced on its official website that it would hold a public auction for a Collection, Letters and Manuscripts of Qian Zhongshu on June 21, including more than 100 letters and manuscripts sent by Qian Zhongshu, Yang Jikang and Qian Yuan to Li Guoqiang. Before the auction, pre-auction exhibitions and seminars would also be hold. Later, several media like Xinhua Net and People.cn reported that they would “reveal a large scale of manuscripts of Qian Zhongshu for the first time”. Through investigation, it was found that the letters and manuscripts of Qian Zhongshu involved were mainly obtained from Li Guoqiang, their content covering private communications, household affairs, personal emotions, literary reviews, historic reviews, running comments and others that have never been known to the public. 

Yang Jikang strongly opposed the public auction of the private letters and manuscripts from the Qians’, and applied to Beijing No. 2 Intermediate People’s Court for a preliminary injunction to stop the behavior of infringement upon copyrights. Qian Yuan and Qian Zhongshu died of illness in 1997 and 1998 successively. Yang Jikang is the successor of Qian Yuan and Qian Zhongshu. Another successor of Qian Yuan, who is her husband named Yang Weicheng, agreed that Yang Jikang shall claim the rights concerned as the only successor. 

During the process, A third party, Tsinghua Unigroup, issued a letter of guarantee to the court, together with the photocopy of its business license and latest financial statements, stating it is willing to act as a guarantor to provide guarantee for the applicant Yang Jikang. And it also agrees in writing that it will bear joint liability for all the economic losses of the respondent that might be incurred from any applicant’s fault.   

Holding

Beijing No. 2 Intermediate People’s Court ruled that Sungari should stop any conduct that infringes the copyright of the letters and manuscripts involved sent from Qian Zhongshu, Yang Jikang and Qian Yuan to Li Guoqiang in the auction, exhibitions and publicity activities by means of publication, exhibition, reproduction, distribution or network dissemination. 

The ruling shall be immediately executed after service. In case any party is dissatisfied with the ruling, it may apply to the court for reconsideration within ten days after receipt of the judgment. The execution of the ruling shall not be suspended during the reconsideration.

[Reasoning]

Through the trial, Beijing No. 2 Intermediate People’s Court holds that: 

Preliminary behavior preservation is also called preliminary injunction, which refers to a kind of compulsory order granted by the people’s court before trial upon the request of one party as to prohibit or limit a certain conduct of another party where a infringement upon the copyright of the party is happening or is about to happen. It aims to protect the party’s intellectual property rights and prevent irreparable damages from happening. 

The requirements for granting a preliminary injunction are mainly the four listed below. 1.the applicant is the subject of the intellectual property right, and the respondent is conducting and is about to conduct an infringement to the intellectual property right. 2.Failure in timely deterrence of such infringement will cause irreparable harm to the right holder. 3. The applicant has provided valid guarantee. 4. The granting of the preliminary injunction is not detrimental to social interests. 

I. Letters and manuscripts are the works protected by the Copyright Law 

Works defined in the Copyright Law of China refer to intellectual results that are unique in the fields of literature, arts and science and can be reproduced in a tangible way. Letters, as a human tool to communicate feelings, exchange ideas and discuss issues, usually are written works independently conceived and created by the sender, and the content or form of expression is usually not or not fully a citation or transcription of published works by others, namely, not a simple imitation, reproduction, tampering of others’ works. Therefore, letters usually feature originality and replicability in line with requirements of works set forth in the Copyright Law and may become works protected by the Copyright Law. Therefore, the author (i.e., the sender) should be entitled to the copyright. According to relevant provisions of the Copyright Law, Qian Zhongshu, Yang Jikang and Qian Yuan each is entitled to the copyright of the letters created by her/himself. 

II. The applicant is entitled to request for an injunction under the Law of Succession. 

After the death of Qian Zhongshu, Yang Jikang, his only successor, has the right to legally inherit the property rights of his copyright, protect his rights of authorship, alteration and integrity, and exercise his right of publication. After the death of Qian Yuan, Yang Jikang and Yang Weicheng become her successors and have the right to own the property rights of her copyright, protect her rights of authorship, alteration and integrity, and exercise her right of publication. Given that Yang Weicheng has expressly given up the aforesaid rights, Yang Jikang has been entitled to the aforesaid rights. Anyone, including the receiver of the letters and other recipients legally obtaining the letters, shall not impair the legal rights and interests of the copyright holder when they dispose of the legally obtained letters and manuscripts. 

III. The conduct of the respondent has been preliminarily identified as infringing act. 

The criterion to determine whether a work is published or not is to identify whether the work is released to the public, namely the work is at a state where it could be known by an uncertain number of people. In this case, Sungari is about to exhibit and auction the letters and manuscripts involved. The reproduction and issuing of the aforesaid letters and manuscripts through newspapers, light disks, brochures and online means by Sungari in process or to be done for the purpose of auction objectively exposes the works at issue to the public. It is not only an infringement upon the publication right, but also an infringement upon the reproduction right and the issuing right of the copyright holder.

IV. The respondent’s conduct will cause “irreparable harm”.  

The publication right is one important personality right of copyright. It is the right determining whether the work to be exposed to the public and when, where and by what means the work to be exposed to the public. The publication of the work is a one-off conduct. Once the work is illegally published, it would cause an objection to the will of the copyright holder. It terms of this case, it means that the private letters and manuscripts enter the public area, which is irreversible. The state of being known to the public cannot go back to the state of being in private control of the copyright holder. Therefore, the illegal publication of the private letters and manuscripts through the means of public auction could cause irreparable harm to the copyright holder.

More importantly, the right to publication is not only an independent and important personality right of copyright, but also the basis for the copyright holder to exercise and protect other related rights. Published or not, copyright over the work is protected by law. However, the publication of the work has a great influence on the copyright holder’s ability to control and protect his/her own rights, and it would also affect whether other people could obtain and utilize the work easily or legally. If there were a switch between private and public, publish the work illegally is just like turning the switch on. The public could only have access to the work and distribute and reproduce the work when the switch is on. The Qians’ letters and manuscripts involved are private letters written to Li Guoqiang. From the function of private letters and the specific content of the letters involved, it could be seen that the intent of the sender is to transmit information, communicate feelings and discuss issues, instead of exposing what have been written to the public for their appreciation and comment. Where Yang Jikang made clear her intent not to make the works involved to the public, the unauthorized publication of the works would make the copyright holder loss control over other reproduction and distribution behaviors, which is likely to cause chain copyright infringement actions. This is to cause irreparable harm to the copyright holder. 

Additionally, the court has sufficiently evaluated the afterwards influence what the preliminary injunction might bring. On the condition that applicant has provided valid guarantee, granting the preliminary injunction would not be detrimental to social interests. Both protecting the copyright of the work and encouraging the distribution of the work are values guarded by law. Compared to ordinary literary works, private letters are somewhat peculiar as it functions more like a carrier of private emotions and a means of expressing private feelings. It serves no way as public cultural distribution. The copyright holder’s control over the private letters is a typical private right, which should be highly respected. Prohibiting the publication of private letters against the copyright holder’s will is not detrimental to social interests, instead, it will help make clear the rules as to the copyright of private letters and the protection of privacy. The receiver and the auction company shall not infringe upon the copyright of the works involved even though they are entitled to exercise their property rights.

Bases on analysis above, the court ruled the preliminary injunction to be granted.