—comment on the game software infringement by China laws
Highlight: To introduce you the most common infringement against the online game and the methods by which the right owner could stop the infringement or to gain the profit by licensing the infringer.
As news reports, Shengtiantang, a China game company is complained and demanded to withdraw by Blizzard for the company’s developed game World of Starcraft on iOS platform, meanwhile, Apple has also noticed Shengtiantang of the no infringement evidence.
In addition to combating the infringement through Apple, Bridge IP Law Commentary suggests blizzard to protect its right following Halfbrick, who is the developer of the well-known Fruit Ninjia and has prevented most infringement against its famous game by lawyers letter and getting prepare to fight back against the rest by lawsuit as news reports.
Today, Bridge IP Law Commentary will introduce you the most common infringement type against the online game in China as well as the solutions by which the foreign right owner to combat the infringement:
I. What has been infringed?
The game software is not a simple copyrighted works, besides the software itself, the drama, music, art works, script could also has copyright. And as to the name of the games, it could be protected by the trademark law in addition to the copyright law.
The most common copyright dispute of online game could be divided to 2 types:
1. The disputes among the online games. It mainly includes the infringement of game name, the copy or imitation of the game elements, such as the name of the characters, races or weapons, the similarity in art design or the interface. And many disputes could be defined as the server imitation, for example the game using others source code may has the similar or same game program with the copyrighted one, and some may imitate other’s game model which could result in the similar game setting and gameplay.
2. The dispute of infringement against other’s works. The most typical ones include the unauthorized using of other works, involving the word stock (such as the case of Blizzar vs. Founder), music, novel (as the drama of the game) or the cartoon character designed by others.
II. How to combat the infringement?
The second type of the infringement as mentioned above is the most common one in China, in addition to the case of Blizzard vs. Founder mentioned above, Shanghai court once has heard the disputer of background music of the game 51 Dancing and character disputer of the game Baby Tank.
The most urgent demands of the right owner is to demand the stop of the misconduct when the infringement occurs. By our experience, the biggest problem in right protection in China is to find the infringing party or such parties has no compensation ability. While it will not puzzle the righter of the online game for any MMORPG’s development cost could be more than 3 million dollar, and the cost of iOS or android games is also expensive. Meanwhile, to find out the game company is also not a problem due to their public operation.
Therefore, to combat the infringer directly in China by our experience is not complicated and difficult. For the pirated literary works, music pieces, cartoon characters enjoy social reputation and the infringement is not difficult to probe, for this reason, the infringer could be effectively alerted or shocked once the right owner sends the lawyer’s letter through attorneys, and many infringer will hereby stop the infringement or alter the game content.
Surely, there could be some tricky infringer who will make little or part change on the infringing content after the lawyer’s letter. By our experience, in such situation, the dispute has to be handed over to the court, while it’s still not a question to the right owner for they could be entrusted to attorneys. And we also find out that the infringer’s alternation on the infringing content could be a solid evidence against the infringer itself in the hearing, and the legal owner is most likely to win the suit in such case.
There also could be another situation where the infringer is hesitated to follow the righter’s demands for the vast investment and market share it has won. Bridge IP Law Commentary thinks it could also be chance to the right owner for they could fully make use of the hesitation and offer to grant the license with a appreciable license fee payable by the infringer (licensee). Rovio, the developer of the popular game “Angry Bird” has recently announced its plan to increase the investment in China, in our opinion, facing the widespread pirating game peripheral products, the company could adopt the suggested combination of “legal action+business license”, and therefore the brutal infringement record may be replaced by profitable cooperation contracts.
Above all, Bridge IP Law Commentary suggest the instant lawyer’s letter when finding the infringement to the right owner, meanwhile, they could also take advantage of their mental struggle to take an favorable position in the licensing using, thus the legal right of them could be protected to the utmost extend.
Author: Mr. Albert Chen
Attorney-at-law of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.