Who should the copyright of the commissioned work belong to? How to define the client's reasonable use of the work? Recently, the Beijing Intellectual Property Court concluded a case involving copyright infringement of commissioned works, determined that the copyright of the works involved in the case should belong to the creator Liao, and that the act of an industrial design limited company involved in the case constituted an infringement of the right of reproduction and authorship enjoyed by Liao. The court upheld the first instance judgment and rejected the lawsuit request of the industrial design limited company. An industrial design company in Dongguan City, Guangdong Province (hereinafter referred to as the design company) invited and entrusted Liao to participate in the creation of the landmark project in Nancheng, Dongguan City. Liao designed and completed four sculpture manuscripts of Little Ben Bell, Sitting in the Spring Wind, Crayon Castle and South City, and registered their copyright. Dongguan Nancheng Sub district Office entrusted China Far East International Tendering Co., Ltd. Dongguan Tendering Center (hereinafter referred to as Dongguan Tendering Center) to invite bids for the landmark project of Nancheng City. After a sculpture landscape engineering company in Beijing (hereinafter referred to as sculpture company) won the bid for the project, the design company authorized the sculpture company to use the sculpture involved as the landmark display of the project, and the sculpture company finally constructed it. During this period, Liao never reached an agreement with the design company and did not sign a written contract due to design remuneration and other issues. Liao Mou thought that the design company and sculpture company infringed on their relevant copyright, and sued to require them to bear the civil liability of immediately stopping the infringement, publishing an apology statement, and compensating for economic losses and reasonable expenses. After trial, the court of first instance found that Liao was the author of the graphic art works of four sculptures involved in the case, and the sculptures built in the Nancheng Urban Landmark Project were substantially similar to Liao's works. The evidence on the case was not enough to prove that Liao and the design company had reached an agreement on a commissioned creative relationship, and it was difficult to determine that the design company authorized the sculpture company to bid and finally built the four sculpture departments with Liao's consent and authorization, The construction of the four sculptures involved in the case was an infringement without the permission of the copyright owner, and Liao was not signed, which broke the relationship between the sculpture and Liao, and the design company infringed on Liao's right of reproduction and signature of his works. The sculpture company, Nancheng Sub district Office and Dongguan Bidding Center are free from subjective fault and should not bear tort liability. Finally, the court of first instance ordered the design company to immediately stop infringing Liao's right of authorship, publish an apology statement, and compensate for the economic loss of 500000 yuan. The design company refused to accept the first trial and appealed to Beijing Intellectual Property Court. The Beijing Intellectual Property Court made the above judgment after hearing. The judge said that in this case, to determine whether the involved behavior of the design company constitutes infringement, it is necessary to determine the following focus of dispute in turn: First, whether the contract between Liao and the design company has been established? According to the relevant provisions, if the parties dispute whether the contract is formed, and the people's court can determine the name, subject matter and quantity of the parties, the contract shall generally be determined to be formed. If the parties did not conclude the contract in written or oral form, but it can be inferred from the civil acts undertaken by both parties that they have the intention to conclude the contract, the people's court may determine that the contract was concluded in the "other forms" in the first paragraph of Article 10 of the Contract Law. Therefore, the Beijing Intellectual Property Court
Edit：Hou Wenzhe Responsible editor：WeiZe
Source：chinacourt.org
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