The Supreme People's Court concluded an appeal case involving infringement of computer software copyright, overturning the initial judgment to determine that when code comparison is unfeasible, substantive similarity in game software can be assessed based on the evidence at hand and established facts, the game software’s usage and characteristics, and a comprehensive analysis of the concordance between the accused infringing game’s title, credited author and brief introduction, user interface, character depictions, storylines, distinctive trademark signs, and those of the copyrighted game.
Beijing A Company is copyright owner of X game software, while Changsha B Company operates Y application. Beijing A Company sued Changsha B Company for infringing Beijing A Company’s computer software copyright by providing a cracked version of X game software for download on its operated Y application without permission, seeking cessation of infringement and damages.
In the first instance, the court opined that Beijing A Company claimed that the essence of its online game encompassed not only the copyrighted software but also the continuous audiovisual content derived from running the software, including the user interface, character depictions, background music, game rules, storylines, and other elements. In the absence of the law granting online games an independent type of work and providing different substantive protections and litigation jurisdictions for computer software and audiovisual works, Beijing A Company requesting for independent judicial protection of online games as a separate work type did not align with legal provisions. Moreover, Beijing A Company, despite being able to submit and being ordered to submit the copyrighted software code in the first-instance trial, refused to do so, contradicting the civil litigation principle of good faith and honesty, and adverse consequences thereby caused should be borne by Beijing A Company itself. On such basis, the first-instance court dismissed Beijing A Company’s lawsuit. With dissatisfaction, Beijing A Company appealed the decision.
In the second instance, the Supreme People's Court determined that, considering Beijing A Company's claims and related arguments, the case pertained to a dispute over infringement of computer software copyrights. Changsha B Company argued that the accused infringing game was uploaded by a third party and subsequently removed, making it impossible to submit the code of the accused infringing game for comparison. Where there is no basis for code comparison, software similarity or substantive similarity needs to be determined through an analysis and comparison of available evidence and established facts.
The primary function of game software is entertainment, which is primarily delivered through the user interface, character depictions, and storylines within the game. These aspects serve as the external expression of game software and are the core objectives of program design, and are realized through computer software code. In cases where code comparison is unfeasible, whether games are identical or substantially similar can be evidently manifested through external expressions like user interface, character depictions, and storylines. Although technically identical or substantially similar user interfaces, character depictions, storylines, and other external expressions can be achieved through different computer software code, considering the purpose and characteristics of game software, the possibility of two independently developed game software sharing identical or substantially similar user interfaces, character depictions, and storylines is rather small. In this case, the accused infringing game and the copyrighted game have operation interfaces, character depictions, storylines, and other elements that are fundamentally similar. Additionally, the title of the accused infringing game suggested it was a cracked version of the copyrighted game, shared the same author and introduction details, and displayed Beijing A Company’s trademark on the interface, further supporting the highly probable fact that the accused infringing game was a plagiarized product of the copyrighted software. Therefore, considering Changsha B Company could not provide evidence demonstrating differences or substantial disparities between the accused infringing software and the copyrighted software, it can be presumed that they constitute substantive similarity. Regarding the compensation amounts, the determination considered the fact that the disputed work being a game software and factors such as the nature and consequences of Changsha B Company’s infringement, the removal of the accused infringing game from distribution, and that Beijing A Company has notarized dozens of game software operated by Changsha Company B on the Y application and has successfully filed multiple lawsuits in separate cases to obtain compensatory judgments.
With the development of computer network technology, the rapid growth of the online gaming industry has corresponded to a rise in intellectual property disputes. Adjudication of disputes concerning infringement of computer software copyrights in online games should entail a clarification of civil legal relationships based on the plaintiff's claims and case facts. In cases where direct code comparison is unattainable, assessing infringement in such software should consider the purpose and characteristics of online games. This involves analyzing elements such as user interfaces, characters depictions, storylines, and external expressions of game software, along with details like titles, authors, introductions, and trademarks to determine similarities. The burden of proof may then shift accordingly. Furthermore, upholding principles of fairness is essential in determining the rights and obligations of all parties involved, balancing the interests of game creators, operators, service providers, and stakeholders in related industries while safeguarding the interests of game users and public welfare and justly determine compensation amounts. This ruling provides guidance on evaluating substantive similarity in online game software when code comparison is unfeasible, effectively reinforcing the protection of innovative products, legally safeguard the legitimate rights and interests of entities engaged in the development, operation, and services of online games. It guides operators in the online gaming derivative industries to respect the intellectual property rights of others, operate in compliance with laws and regulations in good faith, and promote the healthy development of the online gaming industry.
(2023) Zui Gao Fa Zhi Min Zhong No. 1148
If you have any question about the protection of intellectual property rights, please feel free to send us emails. For patent-related matters, please send to info@afdip.com. For trademark/litigation/legal matters, please send to info@bhtdlaw.com.
