(By Luo Yanjie) Abstract: The Copyright Law protects “expression” rather than “thought”. For the purposes of the Copyright Law, “works” refer to original intellectual creations in the literary, artistic and scientific domain, insofar as they are capable of being reproduced in a specific tangible form. Works without originality are not protected by these laws.
In recent years, there has been a serious plagiarism problem in the field of online games. Considering that online games act as computer software, laws protect its “code” other than game mode and method. The case in today’s post will elucidate this principle.
Introduction to the Case:
Plaintiff: NEXON HOLDINGS LIMITED (the “NEXON”)
Defendants: Tencent Technology (Shenzhen) Co., Ltd
Shenzhen Technology Computer Systems Company Limited (the “Tencent”)
Beijing Wanzhong Heli Technology Co.,Ltd
Court of First Instance: Beijing No.1 Intermediate People’s Court No.: （2006）一中民初字第8564号
Court of Second Instance: we have no further information of the appeal.
NEXON developed an online game in 2001 named “BNB” (or “Crazy Arcade”) in English and “泡泡堂” in Chinese, and operated BNB in Korea until recently. NEXON made a copyright registration in Korea on July 26, 2002 and started a cooperation of its operation in Mainland China with Shanda Games Limited (NASDAQ: GAME) from 2003. The defendant Tencent began to operate an online game named “QQ堂” in Chinese and “QQ Tang” in English in the end of 2004. After comparison between BNB and QQ堂, NEXON thought that Tencent had committed infringement upon the various copyrights of BNB, such as written works, works of fine art and art design, alleging that QQ Tang had copied the fundamental elements of BNB, such as the variations of the game, content of the game and art and design assets. Beijing Wanzhong Heli Technology Co., Ltd provided rechargeable card services for QQ堂, and therefore undertook conduct that constituted joint infringement. Therefore, NEXON brought the above mentioned companies to courts.
The court of first instance heard the case and held that:
1. The Plaintiff has not copyrighted the contents, such as the Game Zones/Channels, players’ information and game items’ name in BNB.
2. The works of fine art in the actual combat scenes and other gaming art and design assets do not constitute similarity as a whole. Within the games, what ‘smile’ refers to success and what ‘cry’ refers to failure are the results of a category of thought rather than expression; if the defendant and the plaintiff utilized a different expression, then the conduct of the defendant does not constitute copyright infringement.
3. When comparing QQ堂 and BNB, the pronunciation, Chinese character patterns and meaning of QQ堂 are not identical to or similar with that of BNB except that the same Chinese character is used (“堂”) in the game name. Players won’t be confused between the two online games.
Therefore, the court dismissed the plaintiff’s action.
Lawyers’ Comment:
The judgment of this case clearly displays the protective scope of the Copyright Law to be as follows:
1. The Copyright Law only protects “expression” rather than “thinking”.
Both “thought” and “expression” are indispensable in a work, meaning that all works encompass both thought and expression and that the difference between thought and expression is inevitably a question of degree. Under no circumstances, should laws control a human being’s “thought”. Therefore, pursuant to the Copyright Law, for different expressions of a same thought, various writers or authors could obtain a copyright independently, demonstrating how a copyright is an exclusive right of an expression.
The judgment contained in this case explains the protection principle of the Copyright Law at its best. Where the defendant’s QQ堂 actually is similar with that of the BNB, is in the game mode and interface. Considering the fact that those similarities are of thought and that the expressions of those similar thought have differences, such as different logos, colors and specific pattern designs, the court held that the defendants’ conduct did not constitute infringement.
2. The Copyright Law protects original works only.
Our current Copyright Law does not complicate the definition and apply an explicit judgment standard of originality in a work. Instead, the Article 2 of the Implementing Regulations of the Copyright Law uses the word “originality” to define a work stipulating that for the purposes of the Copyright Law, “’work(s)’ shall refer to original intellectual creations in the literary, artistic and scientific domain, insofar as they are capable of being reproduced in a certain tangible form”. According to judicial practices, a short title or name generally is not considered of sufficient originality, i.e., it excludes fundamentally original intellectual creations, thus the current Copyright Law does not protect it. In this case, and for this reason, the court decided that elements such as the name of virtual items could not get protection from the Copyright Law.
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