Clear law needed for on­line copy­right cases

China Daily (Hong Kong) - - VIEWS -

Adapt­ing pop­u­lar lit­er­ary works for in­ter­net pro­grams and games has be­come a trend since 2013, creat­ing a se­ri­ous prob­lem be­cause they could con­sti­tute vi­o­la­tion of on­line in­tel­lec­tual prop­erty rights. And with the on­line con­tent in­dus­try be­com­ing in­creas­ingly pros­per­ous, copy­right in­fringe­ments have be­come more and more se­ri­ous, es­pe­cially in on­line games.

Many on­line games in­fringe the copy­right of fa­mous nov­els, car­toons, movies and tele­vi­sion plays as well as other on­line games.

Ac­cord­ing to Beijing Haid­ian dis­trict court, copy­right in­fringe­ment cases in­volv­ing on­line games in­creased 173.5 per­cent year-on-year in 2015.

In many cases, on­line pro­grams and games “bor­row” the names of char­ac­ters, im­ages, plots and even en­tire story lines from the orig­i­nal works, com­bin­ing them into “new” plots and creat­ing “new” works.

Ac­cord­ing to the Copy­right Law, peo­ple can adapt or use ex­ist­ing works for their pro­duc­tions to cre­ate “new” works, but they should not vi­o­late the orig­i­nal copy­right hold­ers’ legal rights. This means peo­ple can only adapt others’ works af­ter ob­tain­ing per­mis­sion from those who hold the copy­right for the orig­i­nal works.

Ac­cord­ing to the Copy­right Law, the “idea-ex­pres­sion di­chotomy” lim­its the scope of copy­right pro­tec­tion by dif­fer­en­ti­at­ing an idea from the ex­pres­sion or man­i­fes­ta­tion of that idea. This, in a sense, means the Copy­right Law only pro­tects ex­pres­sions but not the ideas that give rise to the ex­pres­sions. As such, the ex­ter­nal ex­pres­sions of a story such as char­ac­ters and im­ages are pro­tected by the Copy­right Law, so are the con­tents of sto­ries.

There­fore, the story line, theme and el­e­ments of a work are all ideas, which are not pro­tected by the Copy­right Law. For in­stance, if one per­son sug­gests a sim­ple story should be made into a film but doesn’t pro­vide any de­tailed con­tent, what he or she pro­poses is re­garded as idea with­out spe­cific con­tent and could be ex­pressed in var­i­ous forms. Un­der such cir­cum­stances, even if his or her idea is adopted, he/she can hardly be re­garded as the co-cre­ator of the work, be­cause he/she doesn’t pro­vide its ex­ter­nal ex­pres­sion or spe­cific con­tent be­yond just the idea.

In tri­als of on­line game copy­right in­fringe­ment cases, Chi­nese courts al­ways use the “idea-ex­pres­sion di­chotomy” to pass ver­dicts. Ear­lier this year, Chi­nese kung fu nov­el­ist Wen Rui’an sued a mo­bile game com­pany which used five ma­jor char­ac­ters from his nov­els for in­fring­ing his copy­right and claimed com­pen­sa­tion. The Beijing Haid­ian dis­trict court said the five ma­jor char­ac­ters the mo­bile game used is a sig­nif­i­cant part of Wen’s novel and an im­por­tant ex­pres­sion of the kung fu spirit in his nov­els. The court there­fore ruled that the mo­bile game com­pany should stop in­fring­ing Wen’s copy­right and pay him com­pen­sa­tion for vi­o­lat­ing his rights.

In other words, if a per­son “uses” ex­pres­sions from a work with­out the per­mis­sion of the orig­i­nal au­thor, he/she is in­fring­ing the au­thor’s copy­right.

But there is a con­tro­ver­sial is­sue in on­line adap­ta­tion cases, that is, whether the rules of on­line games come un­der the ju­ris­dic­tion of the Copy­right Law. Hear­ing such a case, the Shang­hai first in­ter­me­di­ate peo­ple’s court said the rules gov­ern­ing on­line games con­sider the idea of an orig­i­nal work, which is not pro­tected by the Copy­right Law.

How­ever, the court also ruled that the de­vel­op­ment and de­sign of games in­volves tremen­dous cre­ative works. If the rules of the games are not pro­tected as ab­stract ideas, they would go against the law’s in­ten­tion of en­cour­ag­ing in­no­va­tion and fair com­pe­ti­tion in the game in­dus­try. There­fore, the court also said the ac­cused in­dulged in “un­fair com­pe­ti­tion” by us­ing the plain­tiff ’s rules of the games.

This rul­ing used the anti-un­fair com­pe­ti­tion law to go against free­dom of ideas, the ba­sic value ori­en­ta­tion of the Copy­right Law, which is self-con­tra­dic­tory.

The au­thor is a pro­fes­sor of law at Com­mu­ni­ca­tion Univer­sity of China.

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