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Denial of permanent injunction for copyright infringement under Chinese laws

Huaiwen He

Keywords: intellectual property rights; permanent injunction; copyright infringement; infringement liabilities; damages

The conventional view that permanent injunction is automatic for IPR infringement is losing ground in China. In fact, there is no statute that requires Chinese courts to grant an injunction upon finding infringement on merit. While IPRs are absolute exclusive rights, IPR infringement incurs liabilities, which by definition are relative. Courts on this account should formulate remedies in the frame of reference for liabilities, with the ultimate objective being to adequately remedy the right infringed. Among the possible reliefs, an injunction is the single powerful non-monetary liability. When considering this relief, Chinese courts may look at the general rules applicable to the performance of obligations in the Chinese civil laws. Case studies show that this is what they intuitively do when denying an injunction in copyright infringement cases. Specifically, they disallow an injunction where the injunction is impossible de jure or de facto, or liable to impose a prohibitive cost on the defendant; or the right is enforced in bad faith or in an unreasonably delayed manner.

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