Unknown Means Infringement? (copyright law/exclusive license/ novel)

Unknown Means Infringement? (copyright law/exclusive license/ novel)

Li Dongtao

Description: an exclusive license should be given to only one party.

The Facts

Standing on the wrong side of the platform,

  waiting for the train.

This is a case about “wrong side”.

Both the plaintiff and the defendant are publishing houses.

In November 1996, the plaintiff made a contract with the author of a novel. According to the agreement, the author would grant the plaintiff the exclusive right to publish this novel for 10 years.

Afterwards, the plaintiff published the book and paid the author the remuneration.

In February 1997, the author granted the same right to the defendant without telling the latter of the existence of the former contract; then, the defendant published almost the same novel with a different title and paid the author the remuneration.

The plaintiff sued the defendant on the basis of copyright infringement.

The defendant argued it had not known of the existence of the earlier contract and was innocent.

Analysis

The copyright infringement is established.

Before the Internet age, an author could hardly publish his work independently, he has to license a publishing house to do so.

If a publishing house is granted the exclusive right to publish a work, all others, including the author himself, will be forbidden to publish the work, even with a different title.

In this case, the exclusive contract concluded by the plaintiff and the author was valid. This validity applied not only to the contracting parties but also to any third party. Therefore, when the defendant published the book, the infringement was established, even though the defendant hadn’t known of the existence of that contract.

Of cause, the defendant might ask the author to pay the damage later.

        In short, standing on the wrong side of the license, waiting for trial.

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