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China IP Magaziine

Copyright Infringement Dispute Between Computer Programs and Computer Documents

发布时间:2018-12-06
Case 9
Copyright Infringement Dispute Between Computer Programs and Computer Documents
Trial Docket: (2016) Yue73MinChu No. 1205
Appeal Docket: (2017) YueMinZhong No. 2207
 
[Headnotes] Coincidental functions and interfaces may exist for different computer programs. So long as the interface does not display plaintiff’s software name or other secret marks, nor is a fact established for defendant’s software developer having contact with plaintiff’s source programs, the mere coincidence that two programs’ functions, interfaces or user methods are the same may not be sufficient to establish a prima facie case, and the burden of prove does not shift at this point to defendant to show a comparison of the alleged infringing software’s source codes.
 
When a computer program is not infringement, the document generated therefrom may still be protected as a work of computer software. But determination of its originality infringement comparison should be made on basis of the specific expressions. Due to specific function or purposes of describing the program, the threshold of computer documents should not be set too high.
 
[Synopsis] Appellant (Plaintiff below): MingJing Spotlight Equipment Co., Ltd. (MingJing)
Appellee (Defendant below): Oulang Spotl ights and Sound Equipment Factory at Shijing Township, Beiyun District of Guangzhou City (Oulang)
 
MingJing is the copyright owner of record for a computer software duly registered at Copyright Center for a “Jingang 1024 Computer Lighting Control Panel Master Program V2.0.” MingJing purchased a set of the alleged infringing product with user’s manual made and sold by Oulang, claiming that the infringing product and the products loaded with its software has, in the process of use, substantial the same screen display, function, function keys and methods of uses. It prays for: 1. Immediate injunction of infringement from, including the infringing acts of, reproduction and distribution, and destruction of the copied products; 2. Payment for economic losses and reasonable cost for abating the infringement activities in the amount of 200,000 Yuan.
 
Oulang admits that it referred to MingJing’s user’s manual, but claims that since the two products use the program “POWER1024 Spotlight Control Panel Master Program V1.03” independently developed by itself, there is no infringement. Regarding the coincidence between the accused software and its own software, MingJing requested for judicial authentication, but upon receipt of the fee notice for 200,000 Yuan from the authentication center it refuses to pay the pre-charge on grounds of the increased fee due to Oulang’s refusal to submit its source code. The court considers the request for authentication is withdrawn.
 
The trial is of the opinion that because of MingJing’s reason the judicial authentication process is terminated, and no determination can be made on the merits of whether the accused products and the computer software at issue are identical or substantially similar based on the evidence presented, MingJing must bear the brunt of failure to prove. In the present case, determination of degree of coincidence between the two softwares’ codes cannot be made simply on basis of similarity involved in the users’ manuals, products appearances, functions, function keys and methods of usage, etc., nor are the similarities or dissimilarities among these within the issue of copyright dispute of computer software infringement. Therefore, MingJing’s claims are dismissed.
 
Not satisfied with this result, MingJing appeals to the High Court of Guangdong, which is of the same opinion as the trial court on the infringement issue for Oulang, and on the evidence issue since MingJing insists on refusing the authentication without Oulang’s submission of its source codes.
 
As to Oulang’s infringement of computer document, MingJing’s user’s manual carries an imprint of its choice and arrangement to some extent in organization and framework of its contents. The document’s originality is prominently expressed in its language, giving it copyright protection. According Oulang’s confession, the court is of the opinion that the fact establishes Oulang’s contact with MingJing’s user’s manual. A comparison of the two manuals shows substantially similar expression, and in several p laces Oulang’s copying of MingJing’s unique expression is found to exceed reasonable fair use of another’s work, to be an infringement of MingJing’s copyrighted computer document.
 
The court of second instance therefore vacated trial court’s decision and remands for an order of injunction against the reproduction and distribution of product manuals in infringement of MingJing’s copyright computer document, for destruction of all the remaining manuals in stock , and for payment of 30,000 Yuan to MingJing for damages.
 
[Judge’s Comment] Article 2 of the Regulation for the Protection of Computer Software provides protection for computer programs and documents. As is generally known, computer programs include source codes and object codes. In judicial practice, the evidence adduced is usually the accused product of defendant. The determination of whether the software used in this product “coincides” with the one asserted by plaintiff, due to the technicality involved, can hardly be made without judicial authentication, which can be made by source code authentication and object code authentication in case the defendant provides complete source codes. Since source code authentication is relatively cheap with controllable error risk, a plaintiff would generally favor this choice; whereas, a defendant would more likely prefer the opposite. If the authentication is interrupted by the disputes between the parties as to choice of material, and no facts could be established, the court needs to decide whether a plaintiff has carried the initial burden of proving defendant’s infringement. In this case, MingJing has not done so, and its request for a court order for Oulang to disprove the dissimilarity by submitting the source code lacks support by both facts and law.
 
Whether the user’s manuals of both MingJing and Oulang can be copyrightable hinges on originality, and originality of such works, due to the functional aspects of the contents, lies mainly in the way its words and diagrams describe and are arranged, for which the threshold should not be set too high. The files have independent values for protection. So the appeals court’s remand on infringement i s sue over computer fileis sustainable.
 
This case offers some test result in long disputed issues, providing useful solution for reference for future cases.
 
(Translated by Zheng Xiaojun, Yuan Renhui)