Recently, Shanghai Intellectual Property Court concluded the appeal of case regarding dispute over copyright infringement and unfair competition between Tianjin Yiqu Technology Co., Ltd ("Yiqu") and Shanghai Yumeng Network Technology Co., Ltd ("Yumeng"). The court affirmed the first-instance judgment and ordered Yumeng to stop the unfair competition of the game software involved immediately and compensate for Yiqu's economic losses and reasonable expenses totaling 1.6 million yuan.  

[Case Review]

The King of Fighters '98UM OL ("KOF") is a mobile fight technology card game developed by a domestic company with the authorization of Japanese company. In May 2015, Yiqu was approved to be the copyright owner of KOF game software, and in May 2017, the former State Administration of Press, Publication, Radio, Film and Television approved its publication and operation. The alleged infringing game, Digimon Adventure, is a game software developed by Yumeng. It was registered at Copyright Protection Center of China in 2017, with Yumeng as the software owner.

Yiqu believed that KOF is a work created by a process analogous to cinematography, which should be protected by the Copyright Law of the People's Republic of China. Yumeng's Digimon Adventure is extremely similar to KOF in terms of game rules description, design of function blocks on the rules interface, character attribute and skill value setting, etc, which constitutes a full plagiarization and has infringed upon the copyright of Yiqu's KOF game. As a competitor of Yiqu, Yumeng has committed unfair competition by plagiarizing its well-know commodity - KOF game. Therefore, it's requested that Yumeng shall immediately stop the infringement and unfair competition, publish a statement to eliminate the impact, and compensate for Yiqu's economic losses and rights protection costs totaling 10 million yuan.             

Yumeng argued that the design of game rules is a kind of idea neither unique nor original to KOF, and Yiqu doesn't have exclusive right to use that idea. In the mobile game industry, homogenization of basic game rules design is common. KOF and Digimon Adventure were produced at low costs, which can't get rid of the basic game rules designed by our predecessors and be essentially different from each other in terms of contents, theme and art design, etc. Therefore, they have no substantial similarity as referred to in the Copyright Law.

After the trial, the Court of First Instance held that the whole KOF game is not a group of pictures and can't be deemed as a work created in a way similar to cinematography. The UI interface, rules descriptions and novice guide of KOF game didn't form original expressions. However, as the structure and design of rules are core elements of a game, Yumeng's plagiarism has impaired Yiqu's intellectual property, violated the business ethics and principle of good faith, and constituted unfair competition. For this reason, Yumeng was ordered to stop the unfair competition immediately and compensate for Yiqu's economic losses and reasonable expenses totaling 1.6 million yuan. Yiqu's other claims were dismissed.

Yiqu filed an appeal to Shanghai Intellectual Property Court.

[Case Study]
After the trial, Shanghai Intellectual Property Court held that whether the whole picture of an online game constitutes a work created in a way similar to cinematography shall be determined based on two conditions: continuous dynamic images and expression of a certain story. Most of KOF pictures lack of continuity and fail to cause a feeling of movement of characters or objects in the picture. They didn't present a plot or a story, and hence didn't constitute the continuous dynamic picture in a work created by a process analogous to cinematography. Generally speaking, the basis ways to play similar games are basic rules, which are a kind of idea beyond the protection scope of the Copyright Law. The party claiming that game design constitutes a work shall prove that the game design are specific rules and original expressions. 

In this case, evidences are insufficient to prove that the design of 20 system functions claimed by Yiqu is original. So, it doesn't constitute a work under the Copyright Law. However, there is obvious plagiarism in Yumeng's design of game rules, which has caused damage to the relevant market of Yiqu and constituted unfair competition.

To sum up, Shanghai Intellectual Property Court decided to dismiss the appeal and affirm the original judgment.

[Relevant Laws]

<!--[if !supportLists]-->I. <!--[endif]-->Copyright Law of the People's Republic of China

Article 3 "Works" mentioned in this Law shall include works of literature, art, natural science, social science, engineering technology and the like made in the following forms:

...

<!--[if !supportLists]-->(6) <!--[endif]-->cinematographic works and works created in a way similar to cinematography;

<!--[if !supportLists]-->(7) <!--[endif]-->drawings of engineering designs and product designs, maps, sketches and other graphic works as well as model works;

...

<!--[if !supportLists]-->II. <!--[endif]-->Anti-Unfair Competition Law of the People's Republic of China

Article 2 Businesses shall, in their production and distribution activities, adhere to the free will, equality, fairness, and good faith principles, and abide by laws and business ethics.

For the purposes of this Law, "act of unfair competition" means that in its production or distribution activities, a business disrupts the order of market competition and causes damage to the lawful rights and interests of the other businesses or consumers, in violation of this Law.

For the purposes of this Law, "business" means a natural person, a legal person, or a non-legal person organization that engages in the production or distribution of commodities or the provision of services (commodities and services are hereinafter collectively referred to as

"commodities").

<!--[if !supportLists]-->III. <!--[endif]-->Regulation on the Implementation of the Copyright Law of the People's Republic of China

Article 2. The term "works" used in the Copyright Law refers to original intellectual creations in the literary, artistic and scientific domain, in so far as they are capable of being reproduced in a certain tangible form.
      

(Authors: Hu Mi, Chen Tengyun, Shanghai Intellectual Property Court)