艾未未のインスタグラム(aiww) - 7月13日 05時08分

TRANSCRIPT OF COURT HEARING：AI WEIWEI VS. SKANDINAVISK MOTOR CO. A/S
Case no.: BS.38220/2018 GLO
9:00 a.m., May 22, 2019

The verdict for this case will be delivered on July 17, 2019.

[BIHAKUEN]UVシールド(UVShield)

aiww P. 34, article 3: General provisions, 1. "Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive." "Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays." 2. "Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse." According to The Law Enforcement Directive. A publication shall only be implemented if it through deterrence can help to prevent recurrences. I refer to the book "Judicial prohibitions/injunctions and intellectual property rights" ("Judicielle forbud/påbud og imaterialretsproces") by Clement Salung Petersen et al. , material dossier p. 239-244. On p. 243 bottom. 5.2.2. Proportionality etc.The publication of a verdict must involve an assumption that it is suitable in order to prevent new violations through deterrent and further awareness in the consciousness of the general public, ref. above 4.1 concerning the reason for the injunction on public disclosure of verdicts concerning Intellectual property right violation. This normally implies that there exists infringements of a certain extent and that sanctions have been imposed on the infringing party. It is not a requirement that the infringements have been realised commercially. 86. The public disclosure of the verdicts are particularly contingent on the proportionality assessment. According to the Law Enforcement Directive, article 3, that the means and measures for enforcing intellectual property rights shall be "efficient, be proportionate to the infringement and have a deterring effect, but at the same time be "fair and reasonable" while refraining from being "unnecessary complicated" and "shall be implemented in a manner preventing hindrances for legal trade-flow and providing a guarantee against their misuse. See also in this context TRIPS Agreement, Article 41. (Part 57)

aiww When setting the remuneration, the court must take into account that it is only a part of the artwork that has been reproduced and not all of it, and that the plaintiff himself has contributed to the creation of unnecessary focus on the reproduction. I claim that the plaintiff and Kunsthal Charlottenborg have worsened the situation. On 9th March, 2017, the plaintiff has on Instagram sought to make negative mention of SMC and VW AG by saying that they are irresponsible and that they do not respect humanitarian crises. Exhibit F, extract p. 260-269. SMC, in good faith, committed an unintentional error which does not warrant the plaintiff’s reaction. What the plaintiff writes on Instagram is not relevant in a copyright infringement case. Stein has explained that SMC supports a number of humanitarian projects. Including; Over 10 years of donating cars to the Denmark fund-raising (Danmarks indsamlingen). VW AG also engaged in a lot of corporate social responsibility work and humanitarian projects relating to refugees. Exhibit B, Material Dossier p. 284-298. The plaintiff’s accusations do not represent reality. It underlines the attempt to shift focus away from the facts of the case. This is not the first time the plaintiff uses public media to call attention to his work. Exhibit K, extract p. 122-146. SMC can not be held accountable for the fact that Kunsthal Charlottenborg and the plaintiff have drawn attention to the matter. The fact that they have done so should damage the plaintiff. In regard to case law, I will include the High Court of Eastern Denmark’s (Østre landsret ØLR) ruling of 1st October , 2018, in material dossier p. 77-81, as well as the Maritime and Commercial Court’s ruling in the same case, p. 82-90. The case concerned many years of infringement of the origins and rights of the comic-book figure Obelix. The infringement was done by a café in which the decoration and marketing was predicated on the copyright protected material. The SHR and the ØLR both determined that 600,000 DKK was to be paid in a reasonable remuneration. (Part 52)

aiww The opponent has pointed out that VW AG’s large sales in China are extremely offensive to the plaintiff as he is a political refugee from China. SMC has a great deal of respect for the plaintiff’s struggle for human rights in China, but the dealings of VW in China have no relevance in this case. SMC is a local Danish company with an importer agreement with VW AG and has no relation to VW AG’s business in China.This is not a circumstance the court should consider in relation to the compensation. The fact that the plaintiff has chosen to include this in the case implies that he seeks to move the focus to something other than what the case is about.This is also evident from his explanation today, where he said that it was more about his struggle against VW than about the infringement itself. This may be a reasonable struggle, but it has nothing to do with SMC or the present case, in which the problem concerns an infringement of limited scope and duration and it is not documented that SMC's reproduction has had a negative impact on the plaintiff's reputation or renown. For this reason I do not believe the plaintiff is entitled to 250,000 DKK in remuneration. It is a much higher amount than what is considered common practice in Danish courts. The facts of this case do not justify a disregard of this practice. I conclude that the compensation/remuneration should be substantially lower than the plaintiff's claim of two million DKK. 2. Public disclosure I contest the need for a public disclosure of parts or all of the verdict. I claim that the character and magnitude of the infringement does not justify a public disclosure. Referring to: Copyright Act, OHL §84 a, subsection a. As documented in the Danish court following EU's Law Enforcement Directive. Material Dossier p. 30-38. P. 33 (27) "To act as a supplementary deterrent to future infringers and to contribute to the awareness of the public at large, it is useful to publicise decisions in intellectual property infringement cases." (Part 56)

aiww I believe that SMC was in good faith concerning the infringement and that a public disclosure of the verdict is unwarranted. I believe that the infringement was of limited extent and duration and for that reason the verdict should not be publicised. This is supported by the verdicts in other cases, concerning more serious violations than those perpetrated by SMC, in which public disclosure was not required. I refer to the Coop case, material dossier p. 39-76. A public disclosure was not required in this case, despite the fact it involved over 1 million pieces of packaging. I refer to the SHR ruling of April 20, 2015, material dossier p. 99-107. Through their web-page, the infringing party sold T-shirts and used pictures containing a trademark. The verdict in this case was not required to be publicised. I refer to the SHR Ruling of 12th March, 2014, material dossier p. 152-172, about the intentional infringement of the Tivoli trademark. Again, in this case the verdict was not required to be publicised. I refer to the SHR ruling of January 10, 2014, material dossier p. 173-181, a trademark infringement concerning the sale of T-shirts. Again, in this case the verdict was not required to be publicised. I believe the violations in the cases referred to were of a greater extent than those in this case, yet the verdict was still not required to be publicised. Therefore I do not believe a public disclosure is required in this case either. It would not be proportionate to the violations. The reproductions of the artwork in public media that must be attributed to Kunsthal Charlottenborg and the plaintiff's own publicizing of the incident. For this reason the media coverage of the case is not a reason to require a public disclosure of the verdict. (Part 58)

aiww Concerning the Nautical map case and the Lulu chair case in which a large remuneration was granted, the facts from these cases cannot be transferred to the one here. In the Nautical map case the setting of the larger remuneration was based on very high rates which have no relevance to this case. It does not warrant the plaintiff’s considerable claims. The plaintiff claims that there have been considerable expenses in relation with the exhibition of the artwork, but no documentation exists for this matter. Therefore the court should not take this into account when determining the remuneration. The plaintiff claims that SMC leeched off the plaintiff’s fame. I do not believe this to be the case and it should not affect the size of the remuneration. Had SMC been granted the artist's permission through Vista, they would merely have paid few thousand DKK to use the artwork. I do not assert that Vista’s rates are directly applicable since the artist is not registered with Vista and he does not accept commercial use of his art, but it is established from the considerations to MFL §83, p. 2, that when doing an estimated assessment the court can refer to the standard rates within the field. I do not consider the fact that the plaintiff is an internationally recognized artist and multi-millionaire justifies a multiplication of the remuneration. It is not in line with case law in the field. The plaintiff considers the rates from Vista to be absurdly low. I would rather prove that the plaintiff's claims are absurdly high. There are several examples in Danish case law on the commercial exploitation of artists' works with extensive violations, where the remuneration is set lower than what is required here. (Part 54)

aiww The plaintiff claimed that SMC’s use of the artwork has damaged the plaintiff’s reputation and renown and has hence been market-disrupting. I deny this and find the statement to be undocumented. The Plaintiff himself explained that the consequence has been a delay of exhibitions, not that it has affected the sale of his artwork or his cooperation with partners. I do not believe this to be documented in the case. In relation to the compensation, the plaintiff has enquired into VW’s revenue from the Polo, during the time in which the reproduction of the artwork took place. SMC has not disclosed the revenue because the request came too late for them to include it. There is no relation between SMC’s revenue on VW Polo in the period and the use of the artwork in the VieW article relating to the new Polo. I refer to the explanations concerning VieW not being a marketing channel for the sale of cars, but that large TV advertisements and similar are used for this purpose. These have a genuine marketing value in contrast to a single page in a customer magazine. For this reason SMC’s revenue should not be considered in relation to the compensation claim. I also contest the plaintiff's claim of a reimbursement of 250,000 DKK and I dispute that we have to do with several, extensive and serious violations of the plaintiff’s artistic renown. The plaintiff claims that SMC violated the plaintiff’s droit morale because the artwork was cropped. The plaintiff has himself published pictures on Instagram of similar artworks that have also been cropped, extract p. 157. It is not clear why the cropping of the artwork is an infringement. Therefore no violation of his droit morale has taken place. (Part 55)

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