(By You Yunting) A game guide, also known as game strategy guide, is an essential reference for players. Generally, a game guide may quote pictures and screens from the game itself. But if without authorization, it triggers questions whether this quotation causes copyright infringement. In the following, a similar case will be introduced.
Introduction to the Case:
Plaintiff: Shanghai Aurogon Information and Technology Co., Ltd (the “Aurogon”)
1st Defendant: China Zhongdian Media Co., Ltd (the “ZD Media”)
2nd Defendant: Beijing Sheng Bi Er Digital Technology Co., Ltd (the “SBE”)
3rd Defendant: Beijing Books Building Co., Ltd (the “BBB”)
Court of first instance: Xicheng District People’s Court No.:（2010）西民初字第18215号
Plaintiff, the developer and copyright holder of the game Gujian Qitan, a 3D role-playing video game, filed a lawsuit against three defendants hereof, with the claim that, the book Gujian Qitan Prima Guide (the “disputed book”) published by the ZD media and sold by both SBE and BBB, is unauthorized to use large amounts of screenshot of the disputed game as its cover and contents, infringing the copyright against the works of art in the disputed game.
The court held the following comments upon the trial:
Firstly, the works of arts in the disputed game, dependent on developer’s material technical conditions, were co-produced by graphic artists and programmer, and be owned by the developer. So, the court determined that plaintiff shall enjoy copyright on the disputed game.
Secondly, pursuant to the Copyright Law, without permission of copyright owner, any copying and publishing the works shall be considered as copyright infringement, excluding the fair use and other conditions, and thus shall undertake liability for its infringement. In this case, the use of pictures in the game guide shall be of necessity and responsibility, but the use shall be excluded from the legal quotation in accordance with laws and regulations. Therefore, the court determined the quotation to unreasonable use, constituting infringement.
In conclusion, the court upheld that the defendants shall cease to sell and publish the disputed book and shall compensate more than RMB 100000.
- This case shall be determined of fair use.
To begin with, the Copyright Law regulates that, appropriate quotation from a published work, where such quotation is used to introduce or comment on certain works or to explain a certain issue. As this case involved the game guide of the Gujian Qitan, it is also quite common to use the screenshots of the disputed game, and recognition came from the court. However, the court also determined that fair use should be judged in accordance with the Article 21 of the Implementing regulations of the Copyright Law, i.e., he shall not affect the normal exploitation of the work, nor unreasonably prejudice the legitimate interests of the copyright owner. Furthermore, the court held that the sale of the disputed books will absolutely affect the volume of sales of the authorized game guide, causing unfair damages to the potential markets and value of the authorized ones.
I don’t agree with the opinion of the court, because any game guide will also influence the unfair damage as affecting the sales volume of the authorized guide was considered to be unfair damage in accordance with the opinion of the court. This is not made from the use of the screenshots in the disputed book, instead of the content of the disputed book. At the same time, an introduction, explanation and interpretation quoting from the original works will greatly constitute infringement, because it will affect the sale volume of the introduction, explanation and interpretation. Absolutely, as it is, it is unfair use.
- Does the defendant cause unfair competition?
If this case did not cause copyright infringement, the question came whether publishing other’s game guide constitutes unfair competition. With regard to this question, I have negative attitudes. Objectively, the publisher actually earned benefits by means of riding other’s reputation. Even though, it did not mean the benefits are unreasonable. In my opinion, all rights shall be in a range scope. Back of the case, explanation on other’s game will do reference for users. If the explanation was originally without any statements of “authorization”, the right holder has no right to forbid other’s explanation, otherwise suspecting of “intellectual property abuse”. As for the reason, the purpose of intellectual property protection is to encourage creation and information transmission, not monopolizing the information and knowledge. Therefore, laws and regulations shall authorize appropriately the use and reference by others.