China: 英语教学视频被擅自低价销售,新东方诉51talk 索赔百万(著作权侵权案件)

Last Updated: 3 May 2018
Article by HFG Law Firm

3 月 12 日,据北京市海淀区人民法院官网案件 快报,新东方公司1(原告)因其享有著作权的英语教学视频被未经许可进行传播,将涉嫌侵权的天猫旗舰店(被告 1,侵权行为实施者)及天猫公司(被告 2,网络平台供应商)告上法庭,并且索要人民币 100万元以上的损害赔偿金。

原告新东方公司,全名为北京新东方教育科技 (集团)有限公司,总部位于北京市海淀区,于 2006年在美国纽约证券交易所上市,是中国大陆第一家在美国上市的教育机构。

被告 1,涉嫌侵权的天猫旗舰店"51talk 官方旗 舰店"由大生知行公司所开设,大生知行公司全名为 北京大生知行科技有限公司,成立于 2011 年,总部 位于中国北京,是专门从事在线英语培训的教育机构。同时坐上被告席的还有作为提供交易服务平台的 猫公司。

原告新东方公司称,其发现被告 1 大生知行公司 未经其允许,在被告 1 开设的天猫店铺中以 1 元的低 价大肆销售其享有著作权的英语教学视频"零基础学 英语入门学习视频自学全套英语语法视频自然拼读在线课程"。经原告公证,该产品的中包含多个原告享有著作权的英语教学视频,且视频中均标注原告享有注册商标专用权的标识。据公证书记载,至 2017 年 1 月 20 日止,网页页面显示的涉嫌侵权产品月销 量已达到 335 次,而同样的视频在原告官网上的单个售价在数百至数千之间。

根据《中华人民共和国著作权法》等法律法规之规定,原告新东方公司主张被告 1 大生知行公司侵犯其合法著作权。同时向作为网络服务提供者的天猫公司的帮助侵权行为主张连带责任,因天猫公司对涉案店铺的产品及开设店家的身份并未尽合理审查义务,另外,对明显低于正版价格销售侵权视频制品的信息未尽及时审查删除的义务,构成共同侵权。

原告新东方公司诉请包括被告 1 大生知行公司 立即停止侵权,侵权赔偿金 100 余万,同时要求被告 2 天猫公司反馈大生知行公司涉嫌侵权商品的进一步交易信息并在未及时制止侵权行为范围内对侵权行为承担赔偿责任。

HFG 评论】

HFG 主任律师李蕾(Lanny LEE)介绍,网络服务提供者对于用户上传的视频是否侵犯著作权,是否负有 "审查义务"或"注意义务",是认定用户是否存在过错的一个非常重要的环节。前述两种义务,即"审查义务"和"注意义务",根据法律规定,其对于网络服务提供者提出的要求也有所不同,相比"注意义务"而言, "审查义务"意味着网络服务提供者必须采取合理措施,对用户所上传的视频内容进行逐个审查,并同时查验上传者的授权文件是否合法、完整。如果审查者拒绝采取上述措施,或采取的措施无法达到其审查目的,则可以认为网络服务提供者具有主观过错。

"注意义务"是指,网络服务提供者在其能够和应当发现用户上传的内容存在侵权的情况下,应当及时制止该侵权行为。其是否能够或者应当发现侵权,则一般取决于服务性质、职业要求、同行业的理性人在相同情况下应达到的注意程度等一系列的因素。

目前,我国并没有要求信息储存空间服务提供者,对用户上传的内容进行著作权"审查"的法律规定。本案中,且不论涉嫌侵权产品是否已经上传至天猫公司的服务器上,即使天猫公司作为网络服务提供者中的信息 储存空间服务提供者,其对于上述涉嫌侵权行为是否存在审查义务仍需要进一步根据案件事实进行确认。

Footnotes

1 新东方公司:根据百度百科词条介绍,新东方公司,全名北京新东方教育科技(集团)有限公司,总部位于北京市海淀区中关村,是中国规模最大的综合性教育集团,同时也是教育培训集团。公司业务包括外语培训、中小学基础教育、学前教育、在线教育、出国咨询、图书出版等各个领域。

https://baike.baidu.com/item/%E6%96%B0%E4%B8%9C%E6%96%B9/566055?fr=aladdin)

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