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Beiying Audio and Video Recording Company v. Beijing Film Academy (Dispute over Infringement upon the Right to Exclusive Use of Works)
北影录音录像公司诉北京电影学院侵犯作品专有使用权纠纷案
【法宝引证码】
  • Type of Dispute: IPR-->IPR Contract
  • Legal document: Judgment
  • Judgment date: 10-10-1995
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 1,1996

Beiying Audio and Video Recording Company v. Beijing Film Academy (Dispute over Infringement upon the Right to Exclusive Use of Works)
(Dispute over Infringement upon the Right to Exclusive Use of Works)
北影录音录像公司诉北京电影学院侵犯作品专有使用权纠纷案

Beiying Audio and Video Recording Company v. Beijing Film Academy
(Dispute over Infringement upon the Right to Exclusive Use of Works)

 

北影录音录像公司诉北京电影学院侵犯作品专有使用权纠纷案

BASIC FACTS 
Plaintiff: Beiying Audio and Video Recording Company. 原告:北影录音录像公司。
Legal Representative: Li Baoping, general manager of the Company. 法定代表人:李保平,该公司总经理。
Authorized Agent: Ma Xiaogang, lawyer of Jun He Law Offices. 委托代理人:马晓刚,君合律师事务所律师。
Authorized Agent: Wang Ying, cadre of Beiying Audio and Video Recording Company. 委托代理人:王颖,北影录音录像公司干部。
Defendant: Beijing Film Academy. 被告:北京电影学院。
Legal Representative: Liu Guodian, president of the Academy. 法定代表人:刘国典,该院院长。
Authorized Agent: Han Bing, lawyer of Beijing Economy Law Firm. 委托代理人:韩冰,北京市经济律师事务所律师。
Authorized Agent: Hou Keming, cadre of Beijing Film Academy. 委托代理人:侯克明,北京电影学院干部。
PROCEDURAL POSTURE 
Beiying Audio and Video Recording Company (plaintiff, hereinafter referred to as Beiying Company) brought a lawsuit with the People's Court of Haidian District, Beijing Municipality (hereinafter referred to as Haidian District Court) due to a dispute with Beijing Film Academy over the infringement upon the right to exclusive use of works. 原告北影录音录像公司因与被告北京电影学院发生侵犯作品专有使用权纠纷,向北京市海淀区人民法院提起诉讼。
Beiying Company alleged: In March 1992, Wang Zengqi (an author, Wang hereafter) transferred his right of adaptation and right of production of his novel Being Initiated into Monkhood into film or teleplay to Beiying Company. Both parties renewed the transfer contract in December 1994, and the valid term would expire in March 1998. According to the contract, Beiying Company was the only lawful enjoyer of the right of adaptation and the right of production of the novel Being Initiated into Monkhood. In order to shoot the work, Beiying Company had finished the early preparation work, and invested considerable manpower and properties. On January 14, 1995, Beiying Company noticed the report that “Being Initiated into Monkhood attended French short film festival” on the 729th issue of Drama and Film News. Therefore, Beiying Company knew that Beijing Film Academy unlawfully adapted and shot the novel Being Initiated into Monkhood into a film without the right holder's permission, organized a group to attend Langlois International Students Film Festival in France by bringing the film, and enabled the film to have entered Clermont Film Festival in France. Beijing Film Academy openly infringed upon Beiying Company's lawful right to exclusive adaptation of the work, and spread its infringement both inside and outside the Academy, as well as at home and abroad. It caused unredeemable mental and property losses to Beiying Company. Therefore, Beiying Company pleaded the court to order Beijing Film Academy to stop the infringement, and to destroy the infringing film copies; to make an apology to Beiying Company in public; to compensate 200,000 yuan of economic losses to Beiying Company on the basis of Beijing Film Academy's economic conditions, to compensate for all expenses paid by Beiying Company for the present case; and to bear the litigation costs for the present case. 原告北影录音录像公司诉称:1992年3月,作家汪曾祺将其小说《受戒》的电影、电视剧改编权、拍摄权转让给原告。双方又于1994年12月续签了有效期至1998年3月的转让合同。根据合同,原告是小说《受戒》改编权及拍摄权的唯一合法享有者。为拍摄该作品,原告已完成了前期的准备工作,投入了相当的人力、物力。1995年1月14日,原告在总第729期《戏剧电影报》上读到了“《受戒》入围法国短片电影节”的报道。据此,原告得知北京电影学院未经权利人许可,擅自将小学《受戒》改编、摄制成电影,并组团携该影片参加法国朗格鲁瓦国际学生电影节,使该片入围法国克雷芒电影节。北京电影学院公然侵犯原告依法享有的作品改编专用使用权,并将其侵权行为由校内扩展到校外,由国内扩展到国外,给原告带来无法弥补的精神及财产损失,故要求法院判令北京电影学院停止侵权,销毁侵权影片拷贝;公开向原告赔礼道歉;考虑到北京电影学院的经济现状,要求其赔偿原告经济损失20万元,并赔偿原告为本案支付的一切费用;承担本案诉讼费。
Beijing Film Academy argued: The film Being Initiated into Monkhood which the students of Grade 89 of Beijing Film Academy adapted and shot was the students' graduation schoolwork. Before the film was shot, Beijing Film Academy solicited opinions from Beiying Company, and Beiying Company did not explicitly raise any objection. Beijing Film Academy's production of the film was the fair use of the work Being Initiated into Monkhood which Wang had published, and its direct purpose was to shoot students' graduation schoolwork without infringing upon Beiying Company's right to exclusive use of works. It was true that Beijing Film Academy brought Being Initiated into Monkhood and other student film works to attend Langlois Students Film Festival in France, but the theme of the film festival was “Salutation to Beijing Film Academy”. The film Being Initiated into Monkhood was a thirty-minute short film, and was only projected once in a small theater in Beijing Film Academy for demonstration of teaching, and once at Langlois Students Film Festival. Langlois Film Festival was not a pre-chosen film festival of Clermont Film Festival in France. In a word, Beijing Film Academy had no malice subjectively when shooting the film Being Initiated into Monkhood, and did not even attend Clermont Film Festival actually. Beiying Company said that Beijing Film Academy “spread its infringement both inside and outside the Academy, as well as at home and abroad”, which was ungrounded exaggeration; it also said that Beijing Film Academy “caused unredeemable mental and property losses”, which was even alarmism. Beiying Company brought a lawsuit against Beijing Film Academy on the premise of neither having any factual basis nor understanding the laws correctly, seriously damaged Beijing Film Academy's prestige, and had caused unredeemable damage to Beijing Film Academy in public. Beijing Film Academy pleaded the court to reject Beiying Company's lawsuit. 被告北京电影学院辩称:被告八九级学生改编拍摄的《受戒》一片是学生毕业作业。拍摄该片之前,被告曾向原告征求意见,原告未明确表示反对。被告拍摄该片的行为,属于汪曾祺先生已发表作品《受戒》的合理使用,直接目的是制作学生毕业作业,没有侵犯原告的作品专有使用权。被告携带《受戒》等学生电影作品参加法国朗格鲁瓦学生电影节,该电影节的主题是“向北京电影学院致敬”。《受戒》是全长仅为三十分钟的短片,除被告在小剧场放映一次用作观摩教学外,在朗格鲁瓦学生电影节也只放映了一次。朗格鲁瓦电影节并非法国克雷芒电影节的预选电影节。总之,被告拍摄《受戒》一片主观上无恶意,事实上更未参加克雷芒电影节。原告称被告“将其侵权结果由校内扩展到校外,由国内扩展到国外”是毫无根据的夸大其辞,并称“带来无法弥补的精神及财产损失”更是危言耸听。原告在既缺乏事实基础又未正确理解法律的前提下,对被告提起诉讼,严重损害了被告的声誉,已在社会上造成难以挽回的损害。请求法院驳回原告的诉讼。
It was found out by Haidian District Court after trial that, Beiying Company (Party B) concluded a contract with Wang (Party A) on May 5, 1992. The contract sets forth: “1. Party A permits Party B to adapt and shoot the works Being Initiated into Monkhood, A Chronicle of Danao and Apprentice, over which Party A has the copyright, into films and teleplays. 2. Party A warrants that he will not, within three years from March 15, 1992 to March 15, 1995, transfer the right of adaptation or production of the above three works to any other party.” The contract also sets forth: “Party B shall pay 5,000 yuan of transfer fee in a lump sum to Party A for the adaptation. Party B shall, after expiry of the contract, lose its right of adaptation or production if it fails to adapt or shoot the three works. If it intends to regain the above said rights, it shall negotiate with Party A anew.” On December 30, 1994, Beiying Company and Wang renewed the contract on adapting and shooting the works Being Initiated into Monkhood, A Chronicle of Danao and Apprentice. The following clauses were added to the original contract: “Party A warrants that it will not, within three years from March 15, 1995 to March 15, 1998, transfer the right of adaptation or production of the above three works to any other party. Party B shall pay 5,000 yuan to Party A for the transfer of the right of adaptation. After the film has been shot, Party B shall pay another 5,000 yuan of transfer fee to Party A. The transfer fee totals 10,000 yuan.” In October 1992, Wu Qiong, a student of the Literature Department of Beijing Film Academy, adapted Wang's novel Being Initiated into Monkhood into a film script for completing the schoolwork of adaptation course. After checking the adaptation schoolwork handed in by the students in school, Beijing Film Academy selected the script adapted by Wu Qiong, i.e., Being Initiated into Monkhood, and used it to shoot the student's graduation work. Wu Qiong and Zhao Fengxi, teacher of Beijing Film Academy, contacted Wang by telephone. Wang said that the rights of adaptation and production of the novel Being Initiated into Monkhood had been transferred to Beiying Company. Zhao Fengxi negotiated with Beiying Company, but Beiying Company did not explicitly show its consent to Beijing Film Academy's shooting the film Being Initiated into Monkhood. In April 1993, Beijing Film Academy invested 50,000 yuan, and organized the students of Grade 89 of the Academy to jointly shoot the film Being Initiated into Monkhood. The film was finished in May 1993. It was 30 minutes long, and was made of 16-millimeter film. The title states: “Adapted according to Wang's novel with the same name”, and the ending states “Produced by Beijing Film Academy”. After the film had been shot, it was projected once in the small theater of Beijing Film Academy for demonstration of teaching, and the audience were the teachers and students of the Academy. In November 1994, upon approval of the Ministry of Radio, Film and Television, Beijing Film Academy organized a group to attend Langlois International Students Film Festival in France by bringing films including Being Initiated into Monkhood. The film Being Initiated into Monkhood was projected at the film festival, and the audience include students and teachers who attended the film festival from different countries, and local citizens, as well. When projecting the film, the film festival organizing committee sold a small quantity of tickets to the public. Beijing Film Academy did not attend Clermont Film Festival in France. Beijing Film Academy totally shot two copies of the film Being Initiated into Monkhood, including one copy preserved in the Academy, and another copy on its way of being mailed by Langlois Film Festival Organizing Committee to Beijing Film Academy. Beijing Film Academy had a video tape of the film Being Initiated into Monkhood, which was also preserved in the Academy. 海淀区人民法院经审理查明,原告北影录音录像公司(乙方)于1992年5月5日与汪曾祺(甲方)签订合同,合同规定:“一、甲方允许乙方对其拥有版权的作品《受戒》、《大淖纪事》、《徒》进行影视改编及拍摄。二、甲方保证三年内不将以上三篇作品的改编权及拍摄权转让他人。期限为1992年3月15日至1995年3月15日”。合同还规定:“由乙方向甲方一次性支付改编转让费人民币5000元。乙方在合同期满后,如未对以上三篇作品进行改编拍摄,即丧失其改编权与拍摄权。如欲重新拥有以上权利,则需与甲方重新商定。”1994年12月30日,北影录音录像公司与汪曾祺就作品《受戒》、《大淖纪事》、《徒》的影视改编拍摄问题续订合同。在原合同中增加了下列条款:“甲方保证三年内不将以上三篇作品的改编权及拍摄权转让他人。期限为1995年3月15日至1998年3月15日,由乙方向甲方支付改编权转让费人民币5000元,该影片摄制完成后,乙方再向甲方支付转让费5000元,共计1万元”。1992年10月,北京电影学院文学系学生吴琼为完成改编课程作业,将汪曾祺的小说《受戒》改编成电影剧本。北京电影学院对在校学生上交的改编作业进行审核后,选定将吴琼改编的剧本《受戒》用于学生毕业作品的拍摄。吴琼与北京电影学院教师赵风玺通过电话与汪曾祺取得联系。汪曾祺表示小说《受戒》的改编、拍摄权已转让给北影录音录像公司。赵风玺与北影录音录像公司协商,该公司未明确表示同意北京电影学院拍摄《受戒》一片。1993年4月,北京电影学院投资人民币5万元,并组织该院八九级学生联合摄制电影《受戒》。1993年5月拍摄完成。影片全长为30分钟,用16毫米胶片拍摄,片头字目为:“根据汪曾祺同名小说改编”,片尾字目为“北京电影学院出品”。影片摄制完成后,曾在北京电影学院小剧场内放映一次,用于教学观摩,观看者系该院教师和学生。1994年11月,北京电影学院经广播电影电视部批准,组团携《受戒》等片参加法国朗格鲁瓦国际学生电影节。在该电影节上放映过《受戒》影片,观众系参加电影节的各国学生及教师,也有当地公民。放映该片时,电影节组委会对外公开出售少量门票。北京电影学院未参加法国克雷芒电影节。北京电影学院共制作《受戒》电影拷贝两个,其中一个拷贝封存于本院,另一个拷贝尚在由朗格鲁瓦电影节组委会寄往北京电影学院途中。北京电影学院有制作的《受戒》一片录像带一盒,也已封存本院。
The above said facts can be proved with the statements of both parties, the contract between Wang and Beiying Company on transfer of the rights of adaptation and production of the novel Being Initiated into Monkhood, the film literature script adapted by Wu Qiong, i.e., Being Initiated into Monkhood, the director's shooting script; the approval document of the Ministry of Radio, Film and Television, i.e., “Report on French Langlois Film Festival Organizing Committee's Film Selecting to Exhibition in Beijing Film Academy and the List of the Films”, a copy and a video tape of the film Being Initiated into Monkhood, and other evidence. 上述事实,有双方当事人的陈述;汪曾祺与北影录音录像公司签订的小说《受戒》改编拍摄权转让合同;吴琼改编的电影文学剧本《受戒》;该片导演的分镜头剧本;广播电影电视部《关于法国朗格鲁瓦电影节组委会来北京电影学院选片参展情况和片目的汇报》的批件;电影《受戒》拷贝一个、录像带一盒等证据在案证实。
Haidian District Court held that, Beiying Company's right to exclusive adaptation and use of the novel Being Initiated into Monkhood by way of producing the teleplay or film, which was granted to it lawfully under the contract, should be protected by law. Without permission of the holder of the right to exclusive use, no one else may adapt or exploit the work in the same way, otherwise his acts will constitute infringement upon the right to exclusive use. Article 22 (1) (vi) of the “Copyright Law of the People's Republic of China” prescribes, “…translation or reproduction in a small quantity of copies of a published work may be used by teachers or scientific researchers in classroom teaching or scientific research, provided that the translation or reproduction is not published or distributed.” And the above mentioned acts may be conducted “without the permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner by virtue of this Law are not infringed upon.” In light of the actual needs in teaching, Beijing Film Academy selected Wu Qiong's classroom exercise work, i.e., the film script adapted on the basis of Wang's novel Being Initiated into Monkhood, and organized graduates of that year to shoot the graduation film work which was used to appraise the students study. Although neither the adaptation of the film script nor the production of the film was upon consent of the holder of the right to exclusive use of the novel Being Initiated into Monkhood Beiying Company, after the work has been shot into the film, the ways of exploitation in China were only limited to demonstration of teaching as well as teaching appraisal within Beijing Film Academy, and the work was not distributed or projected in public area. Therefore, at that stage, Beijing Film Academy's production of the film should be fair use of other's work, and did not infringe upon Beiying Company's lawful right to exclusive use of the novel Being Initiated into Monkhood. However, in November 1994, Beijing Film Academy brought the film Being Initiated into Monkhood to France to attend Langlois International Students' Film Festival. When the film was projected at the film festival, the audience included certain students and teachers, as well as local citizens, and the Organizing Committee sold a small number of tickets. In this way, Beijing Film Academy had gone beyond the scope of exploitation for classroom teaching in the school, violated the Copyright Law卡在了奇怪的地方, and its acts constituted infringement upon Beiying Company's lawful right to exclusive use of the novel Being Initiated into Monkhood. Beijing Film Academy should make an apology to Beiying Company for its infringement. Although Beijing Film Academy's infringement might have some potential market effects to Beiying Company who would exploit the work in the same way, the infringement was minor, and thus the compensation should be made in light of the actual circumstance. 海淀区人民法院认为,原告北影录音录像公司通过合同,依法取得的以摄制电视剧、电影方式改编小说《受戒》的专有使用权受法律保护。未经该专有使用权人的许可,其他任何人均不得以同样的方式改编、使用该作品,否则即构成对该专有使用权的侵犯。《中华人民共和国著作权法》第二十二条第一款(六)项规定,“为学校课堂教学或者科学研究,翻译或者少量复制已经发表的作品,供教学或者科研人员使用,但不得出版发行。”上述行为,“可以不经著作权人许可,不向其支付报酬,但应当指明作者姓名、作品名称,并且不得侵犯著作权人依照本法享有的其他权利”。被告北京电影学院从教学实际需要出发,挑选在校学生吴琼的课堂练习作品,即根据汪曾祺的同名小学《受戒》改编的电影剧本组织应届毕业生摄制毕业电影作品,用于评定学生学习成果。虽然该电影剧本的改编与电影的摄制未取得小说《受戒》的专有使用权人--原告北影录音录像公司的许可,但该作品摄制完成后,在国内使用方式仅限于在北京电影学院内进行教学观摩和教学评定,作品未进入社会公知的领域发行放映。因此,在此阶段,北京电影学院摄制该部电影的行为,应属合理使用他人作品,不构成对北影录音录像公司依法取得的小说《受戒》的专有使用权的侵犯。但是,1994年11月,北京电影学院将电影《受戒》送往法国参加朗格鲁瓦国际学生电影节,电影节放映该片时,观众除特定的学生、教师外,还有当地公民,且组委会还出售了少量门票,这已超出在本校内课堂教学使用的范畴,违反了著作权法的规定,构成了对北影录音录像公司依法取得的小说《受戒》专有使用权的侵犯。北京电影学院对其侵权行为应向北影录音录像公司赔礼道歉。北京电影学院的侵权行为虽然对北影录音录像公司以后将以同样方式使用同名作品可能造成潜在的市场影响,但侵权情节轻微,应酌情予以赔偿。
Therefore, Haidian District Court decided as follows on May 18, 1995: 据此,海淀区人民法院于1995年5月18日判决如下:
1. Beijing Film Academy shall, within 10 days as of effectiveness of the present judgment, make an apology to Beiying Company in writing (the contents of the apology must be subject to approval of the present court).   一、

谁敢欺负我的人

本判决生效后十日内,被告北京电影学院向原告北影录音录像公司以书面形式赔礼道歉(致歉内容需经本院审核)。
2. The copy and video tape of the film Being Initiated into Monkhood which was shot by Beijing Film Academy shall, as of effectiveness of the present judgment, only be exploited within the Academy for teaching purposes, and shall not be put into the public area. And   二、被告北京电影学院制作的电影《受戒》拷贝及录像带自本判决生效之日起只能在其学院内供教学使用,不得投入公知领域。
3. Beijing Film Academy shall, within 10 days as of effectiveness of the present judgment, compensate Beiying Company 10,000 yuan of economic losses.   三、本判决生效后十日内被告北京电影学院赔偿原告北影录音录像公司经济损失人民币一万元。
BASIC FACTS 
Beiying Company was dissatisfied with the judgment of the first instance, and appealed to the No. 1 Intermediate People's Court of Beijing Municipality (hereinafter referred to as Beijing No. 1 Intermediate Court). 原告北影录音录像公司不服第一审判决,向北京市第一中级人民法院提出上诉。
Beiying Company appealed and alleged: Under the Copyright Law, the fair use of the works of others for teaching purposes shall only be limited to classroom teaching, and the way of use shall only be limited to translation or reproduction in a small quantity. There was no legal basis for the judgment of the first instance to confirm Beijing Film Academy's shooting the film as fair use. The judgment of the first instance could not only be unable to protect the right holder's lawful rights and interests, but would also lead to serious consequences. Beiying Company pleaded Beijing No. 1 Intermediate Court to confirm Beijing Film Academy's infringement, and to order Beijing Film Academy to compensate 250,000 yuan of losses. 上诉人北影录音录像公司上诉称:著作权法规定的为教学目的合理使用他人作品,仅限于课堂教学,使用方式仅限于翻译或者少量复制。原审判决将被上诉人拍摄电影的行为,确认为合理使用,于法无据。原审判决不仅不能保护权利人的合法权益,而且会造成严重后果。请求第二审法院确认被上诉人的侵权行为,并赔偿损失25万元。
Beijing Film Academy argued: Beiying Company had no statutory eligibility to shoot films, and should not enjoy the right of production of the film according to the novel Being Initiated into Monkhood. Beijing Film Academy's shooting and projecting the film Being Initiated into Monkhood within the Academy for teaching purposes should be fair use. Beiying Company's appellate grounds could not be tenable. Langlois International Students' Film Festival was an academic activity, and Beijing Film Academy's exhibition of its film Being Initiated into Monkhood at the film festival was not publishing or distribution, and did not go beyond the scope of fair use. The judgment of the first instance did not have sufficient basis to determine the act as infringement, nor did it have any legal basis to order the novel Being Initiated into Monkhood to be exploited only within the Academy. Its determination on the film festival organizing committee's sale of a small quantity of tickets was not true, either. Beijing Film Academy pleaded Haidian District Court to reverse the adjudication on its infringement. 被上诉人北京电影学院辩称:上诉人没有拍摄电影的法定资格,不应享有小说《受戒》的电影拍摄权。被上诉人以教学为目的拍摄电影《受戒》及在校内放映属于合理使用。上诉人的上诉理由不能成立。朗格鲁瓦国际学生电影节纯系学术活动,被上诉人将电影《受戒》送至该电影节参展不属出版发行,未超出合理使用范围。原审判决认定该行为侵权根据不足,判令《受戒》只能在学院内使用于法无据,认定电影节组委会出售少量门票也与事实不符。要求撤销原审法院有关被上诉人侵权部分的判决。
Beijing No. 1 Intermediate Court holds: Beiying Company and the copyright owner of the novel Being Initiated into Monkhood concluded a contract on license for exploitation of the copyright, which was true and effective. Pursuant to the contract, Beiying Company acquired the right to exclusive adaptation of the novel by way of shooting films or teleplays. Because the law does not prescribe restrictions on the holder of such a right, Beijing Film Academy's denial of Beiying Company's right to exclusive use of the novel Being Initiated into Monkhood by shooting teleplays cannot be tenable. In accordance with Article 35 of the “Regulation for the Implementation of the Copyright Law of the People's Republic of China”, i.e., “The person who has obtained exclusive right in relation to the use in a certain way of a work shall have the right to prevent any other person including the copyright owner as licensor from using the work in the same way. However, the sub-license of the same right to a third party shall be subject to permission by the copyright owner, unless otherwise agreed upon between the contracting parties”, Beiying Company's right to exclusive use shall be protected by law, and Beiying Company should have the right to exclude others from exploiting the novel Being Initiated into Monkhood by the same of way of shooting films or teleplays. 北京市第一中级人民法院认为:上诉人北影录音录像公司与小说《受戒》的著作权人订有著作权许可使用合同,该合同真实有效。上诉人依合同取得了以拍摄影视的方式改编该小说的专有使用权。因为法律未对拥有此项权利的主体资格进行限制,所以被上诉人否认上诉人享有小说《受戒》拍摄电视专有使用权的主张不能成立。根据《中华人民共和国著作权法实施条例卡在了奇怪的地方》第三十五条关于“取得某项专有使用权的使用者,有权排除著作权人在内的一切他人以同样方式使用作品,如果许可第三人行使同一权利,必须取得著作权人的许可,合同另有约定的除外”的规定,上诉人取得的专有使用权应受法律保护,有权排除他人以拍摄影视的同样方式使用小说《受戒》。
The purpose of Article 22 画风不对,如何相爱(1) (vi) of the “Copyright Law of the People's Republic of China” lies in permitting schools to exploit the works of others gratuitously within a certain scope for classroom teaching, so as to guarantee the smooth going of teaching activities. Beijing Film Academy is a school of arts and cultivates film talents, and its teaching methods are relatively peculiar. The exercise of shooting films shall be a necessary part of its classroom teaching activities. Beijing Film Academy's purposes of organizing the graduates of that year to shoot a film on the basis of the adapted novel Being Initiated into Monkhood were to help students finish the graduation schoolwork and to improve students' practice capability. Beijing Film Academy projected the film for the purposes of demonstration of teaching as well as appraisal, which were all necessary parts of classroom teaching. Therefore, Beijing Film Academy's acts within the above said scope were fair use of the novel Being Initiated into Monkhood, and did not constitute infringement upon Beiying Company's right to exclusive use. 中华人民共和国著作权法》第二十二条第一款(六)项的规定,目的在于许可学校为课堂教学在一定范围内无偿使用他人作品,以保障教学活动得以顺利进行。被上诉人系培养电影人才的艺术院校,其教学方式具有相对的特殊性,练习拍摄电影应属于该校进行课堂教学活动必不可少的一部分。被上诉人组织应届毕业生改编小说《受戒》拍摄电影,其目的是为学生完成毕业作业及锻练学生的实践能力,在校内放映该片也是为了教学观摩及评定,均为课堂教学必要的组成部分。所以,被上诉人在上述范围内的行为系对小说《受戒》的合理使用,不构成对上诉人专有使用权的侵犯。
Beijing Film Academy brought the film Being Initiated into Monkhood to attend Langlois International Film Festival. When the film was projected at the film festival, the audience includes the students and teachers who attended the film festival from different countries, and local citizens, as well. The film festival organizing committee also sold a small quantity of tickets to the public. The afore said facts can be proven with the transcripts of the court's inquiries to Wang Chuanguo, vice president of Beijing Film Academy who attended the film festival, and Qiu Huaiyang, director of the film Being Initiated into Monkhood. Beijing Film Academy brought the film Being Initiated into Monkhood to attend the film festival, causing the film to have entered the public area. Its acts had gone beyond the scope of exploitation for classroom teaching, was not fair use as prescribed in the Copyright Law, infringed upon Beiying Company's right to exclusive use of the novel Being Initiated into Monkhood, and had some negative effects to Beiying Company's potential market of exploiting the work in the same way. In conclusion, its acts constituted infringement. Beijing Film Academy shall bear corresponding liabilities. 被上诉人携《受戒》一片参加朗格鲁瓦国际电影节,且电影节上放映《受戒》时的观众除参加电影节的各国学生、教师外,也有当地公民,电影节组委会还对外公开销售了少量门票。对此,有法庭对参加电影节的北京电影学院副院长王传国、《受戒》一片导演邱怀阳的询问笔录证实。被上诉人携影片《受戒》参加电影节,使之进入公知领域,超出了为本校课堂教学而使用的范围,不属于著作权法规定的合理使用,侵犯了上诉人所享有的对小说《受戒》的专有使用权,给上诉人以同样方式使用该作品的潜在市场造成不利影响,构成侵权。对此,被上诉人应承担责任。
JUDGMENT 
To sum up, it was correct for the judgment of the first instance to determine that Beijing Film Academy's exploitation of the novel Being Initiated into Monkhood for classroom teaching by shooting a film was fair use, and to determine that Beijing Film Academy's attending the international film festival with the film constituted infringement. Beiying Company's appellate grounds were insufficient, and shall not be supported. Therefore, Beijing No. 1 Intermediate Court decided in accordance with Article 153 (1) (i) of the “Civil Litigation Law of the People's Republic of China” on October 10, 1995: 综上所述,原审判决认定被上诉人为课堂教学使用小说《受戒》拍摄电影属合理使用,认定被上诉人持此片参加国际电影节构成侵权是正确的。上诉人的上诉理由不足,不予支持。据此,该院依照《中华人民共和国民事诉讼法》第一百五十三条第一款第(一)项之规定,于1995年10月10日判决:
Beiying Company's appeal shall be rejected, and the judgment of the first instance shall be sustained. 驳回上诉人北影录音录像公司的上诉,维持原判。
For the 5,510 yuan of case acceptance fee in the first instance, Beiying Company shall bear 2,204 yuan, and Beijing Film Academy shall bear 3,306 yuan. The 5,510 of case acceptance fee in the second instance shall be borne by Beiying Company.

 一审诉讼费5510元,由北影录音录像公司负担2204元,由北京电影院负担3306元。二审诉讼5510元,由北影录音录像公司负担。
 

     
     
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