“Limited Expression” in Copyright Infringement Dispute

By Liu Yue,[Copyright]

Ⅰ. Foreword
Copyright protects the expression of ideas, not the ideas themselves. Hence, in disputes involving copyright infringement, it is generally held that in pursuance of the principle of “access” and “substantial similarity,” there exists copyright infringement if the expressions of both parties are identical or similar. However, this principle shall not apply where there is only “a limited number of ways that an idea can be expressed” (“limited expression”), in order to conform to the legislative intent of the copyright law of protecting and encouraging the scientific and technological progress as well as promoting cultural development.
The case discussed here is brought by Mr. Yue Deyu, a scholar, against Mr. Yu Minhong, a famous entrepreneur, for copyright infringement. One legal issue of the case is whether the alleged infringement facts constitute “limited expression.” The facts of the case are as follows:
On July 11, 2008, Mr. Yue Deyu filed an action with the Beijing Dongcheng District People’s Court against Mr. Yu Minhong and the Qunyan Press for copyright infringement. Yue alleged that Yu’s book, CET-6 Portable Vocabulary: Memorization through Root and Association (hereinafter “the book in question”), published by Qunyan Press in February 2008, contained about 300 vocabulary entries involving “associative memory,” of which 100 entries were lifted from Yue’s published book series,  such as Memorization of Vocabulary Through Brainstorms, Speedy Memorization of English Vocabulary for Postgraduate Entrance Examination. For example:
Yue Deyu’s Book
Yu Minhong’s Book
Content match
Content match
Memorization of Vocabulary Through Brainstorms, p.18
attempt   v./n. chang shi, shi tu, nu li
[Pian zi zheng zai (at) shi tu yin you (tempt) ta ren] → at (zai) + tempt (yin you) → shi tu yin you ta ren
(A swindler is trying to tempt others.)
CET-6 Portable Vocabulary: Memorization Through Root and Association, p.8
attempt   v. chang shi, shi tu, nu li
[mnemonic] roots: at (jia qiang) + tempt (you huo, kao yan) → shi tu yin you bie ren (trying to tempt others) → chang shi, shi tu
Speedy Memorization of English Vocabulary for Postgraduate Entrance Examination, p.632
turkey  n.  huo ji, huo ji rou
[the same spelling] Tu er qi (Turkey) sheng chan huo ji (turkey).
(There are a lot of turkeys in Turkey.)
CET-6 Portable Vocabulary: Memorization Through Root and Association, p.278
turkey  n. huo ji, huo ji rou
[mnemonic] association: Tu er qi (Turkey) de huo ji (turkey) zui hao chi.
( Turkey’s turkey is the most tasty)
Speedy Memorization of English Vocabulary for Postgraduate Entrance Examination, p.95
bribe  n. hui lu   
v. xing hui, mai tong
[similar spelling] Xin niang (bride) shou qu hui lu (bribe).
(The bride takes bribes.)
CET-6 Portable Vocabulary: Memorization Through Root and Association, p.191
bribe  v. xiang … hui lu, mai tong 
n. hui lu, xing hui wu
[mnemonic] association:Yao xiang bao de xin niang (bride) gui, jiu yao hui lu (bribe) zhang mu niang.
(One needs to bribe his mother-in-law before carrying the bride home.)
Speedy Memorization of English Vocabulary for Postgraduate Entrance Examination, p.556
smuggle  v. zou si, fei fa si yun; tou yun, tou dai
[beginning & end] Huai dan zou si (smuggle) guo bao, wo men jian jue dou zheng (struggle).
(The rascals smuggle the national treasures. We must struggle with them.)
CET-6 Portable Vocabulary: Memorization Through Root and Association, p.181
smuggle  v. zou si, fei fa si yun; tou yun, tou dai
[mnemonic] association:bu duan jin xing fan dui zou si (smuggle) de dou zheng (struggle)
(continuous struggle against smuggle)
Memorization of Vocabulary through Brainstorms, p.264
wealth  n. cai fu, cai chan; feng fu, daliang
[similar spelling] Jian kang (health) shi ren men zui bao gui de cai fu (wealth).
(Health is a person’s most precious wealth.)
CET-6 Portable Vocabulary: Memorization Through Root and Association, p.56
wealth  n. cai fu, cai chan; feng fu
[mnemonic] association:Jian kang (health) shi wo zui da de cai fu (wealth).
(Health is my greatest wealth.)
At trial, the plaintiff and the defendant conducted a vigorous argument regarding a series of issues. One issue was whether there exists “limited expression” (i.e. a limited number of ways of expressing an idea) in the present case under the copyright law. The defense counsel argued that albeit a certain degree of similarity between the two books existed. There were more than 100 word entries claimed by the plaintiff and those in the book in question. It was mainly because the two books were for the same purpose and that English grammar and its Chinese description had customary ways of expression. Thus, the fact that the plaintiff had chosen particular words as the associative words of a key word or split a key word in a particular manner cannot be used to preclude others from doing so. Moreover, similarity may occur in selecting comparison or contrast words or in splitting words because the English word-building is fixed and established and the vocabulary range is similar. That was the instance of “limited expression,” which cannot be categorized into plagiarism. For this reason, Yu’s lawyer insisted that the book in question did not infringe on Yue’s copyright.
On December 19, 2008, the trial court entered a judgment, holding that due to the nature of the English word formation, the selection of the most similar analogy words was very limited. It was inevitable that with regard to the memorization of the same word, the defendant might choose the same analogy words as the plaintiff did. Therefore, the plaintiff’s prior use of reference words should not restrict others from forming reasonable associations. Meanwhile, Chinese transliteration of English pronunciation is rather limited since English words are pronounced in a fixed manner, which may also result in a small quantity of similar or identical Chinese words that were used by different authors to transliterate English words. This small quantity of similar or identical contents should belong to the instance that “the expressions are limited.” Thus, in determining whether there is plagiarism, the quantity and proportion of the similar or identical contents shall be taken into account.
Based on the above analysis as well as the comparison of the corresponding parts of the two books with regard to the accused entries, the trial court rejected Yue’s claim for lack of factual basis.
Dissatisfied, the plaintiff appealed to the No. 2 Intermediate People Court of Beijing. On March 20, 2009, the court rendered a final judgment, holding that: an author, in writing books on speedy memorization of vocabulary, must to a large extent depend on the principle followed in the relevant problem, i.e. the common method, as well as the necessary and common features and the inherent schema. Therefore, the originality of the authors of such books lies in the selection of materials, plots and expressions rather than the methods used. That is, in selecting comparison or contrast words to memorize a particular English word, for the convenience of memorization, the usual method is to link the two words together. In constructing a statement, the statement is often one of the several reasonable expressions of an idea. Therefore, this expression receives minimal protection compared with literary works. The more limited the means of expression, the higher the likelihood of expressions being identical or similar, and the less the protection accorded to such expressions. Hence, a higher quantity and proportion of identity or similarity is required to constitute copyright infringement. If the similarity or identity is a result of limited or unique expression, plagiarism shall be decided by looking at the case as a whole with considerations to the quantity, proportion and distribution of the identical or similar contents. In the meantime, the second instance court found that the imitation of the original pronunciation by using the same Chinese characters in the present case was the result of limited expression, which was only a small number and randomly distributed in the accused book. Therefore, there was no plagiarism. Based on the above reasons and other facts, the court of second instance held that the grounds of appeal of the appellant could not be established and the claim of appeal could not be sustained, therefore appeal dismissed and the original judgment upheld.
The author thinks that the determination of the second instance court as to what circumstance constitutes “limited expression” is worth discussion.
Ⅲ.The definition of “limited expression”
Correct definition and judicial discretion of cases involving “limited expression” require correct understanding of the connotation and denotation of “limited expression”.
“Limited expression,” also known as “sole expression” or the “merger of idea and expression,” as referred to by some scholars, means the limited number of ways of expressing certain ideas. When the “expression” is limited, there is little room for creating special ways of expressing an idea and it is hard to acquire originality. Moreover, others, in expressing the same idea, can only use the same or substantially the same forms of expression as the author does. In case that idea and expression are inseparable, if the copyright protects the forms of expression, it would in essence protect the idea itself. Some scholars also define the “limited expression” as follows: if there is only one way to express an idea, then the idea and its expression are inseparable and merged. In this case, copyright does not prevent others from using this expression. It can be seen from the above that the definitions regarding “limited expression” in the theoretical circle are similar. It is generally accepted in the judicial practice that “limited expression” means the uniqueness of expression (exhaustive expression), and that there is no likelihood to show originality and no other expressions other than this one can meet the condition of a work.
Ⅳ. The application of “limited expression”
After the clarification of the definition of “limited expression”, we may conclude that if a piece of work can be expressed only in one way, then it cannot be protectable by copyright. In 1990, the United States Court of Appeals for the Fifth Circuit adjudicated a case involving copyright dispute and ruled that the natural gas pipeline map in a residential area in California was not subject to the protection of copyright. The reason for the judgment is that: this map photographically reflected the geographic layout of the underground pipeline of the area. Anyone who wanted to correctly and truly depict the pipeline of the area would, in any situations, draw independently a map as exactly the same as the one that already existed. Therefore, this map is of unique expression and there is a merger of idea and expression. Consequently, it is not entitled to copyright protection. It can be seen that for a work to conform to or constitute “limited expression,” its expression must be unique; any others who want to explain or illustrate the relevant problem can only adopt this unique way of expression. Only in this circumstance can the work be deemed to in the public domain and therefore not copyrightable.
In the present case, Mr. Yue Deyu’s method of making use of association to quickly memorize vocabulary naturally falls outside the scope of copyright protection because it is within the category of idea. However, the original association (creation) by making use of this method, in the author’s opinion, should be protected by copyright law regardless of the length of the creation or whether it is easy for others to have the same association. This is because no matter how natural it is that people will think the same way, for the same subject matter, there will always be different ways of expression. Therefore, plagiarism should not be tolerated. In the present case, the defendant’s lawyer and the second instance court maintain that the ways to split a word are limited and therefore the ways of expression are restricted, which may lead to the same way of expression (“limited expression”) by different person. Hence, defendant Yu Minhong did not infringe on the plaintiff’s copyright. The defendant’s lawyer used Turkey (huo ji) and wealth (cai fu) to illustrate his point. As is alleged by him, turkey with capital letter T means the country of Turkey, therefore it is very natural for one to link Turkey (the country) with turkey (the poultry) in memorization. However, naturalness does not represent necessity. For instance, we may invent a new associative mnemonic method by using the partial tone of the pronunciation of tur (“te”) plus the meaning of “key” (“zhu yao de”), then comes the sentence “wo men ‘te (tur)’ bie jie shao yi zhong ‘zhu yao de (key)’ zhi zuo huo ji (turkey) de ban fa” (We particularly introduce a main method of making turkey). For another example, we may split “wealth” into weal (fu li) and th (the partial tone of “shi”) to memorize the word “wealth (cai fu)”. “fu li (weal) shi (th) guo jia cai fu (wealth) dao da yi ding shi li hou de ti xian (Weal is the reflection of a nation’s wealth). There are too many such examples to be listed here. In the present case, judging from the common sense, if one would like to do more thinking, one will find better forms of expression than Mr. Yue Deyu’s in memorizing a particular word. From this angle, the court of second instance failed to correctly understand the connotation and extension of “limited expression”, thus resulting in a certain degree of deviation of the application of jurisprudence.
In applying “limited expression” to try cases, the main facts to be considered are whether there are other reasonable and appropriate forms of expression other than the known ones for the same subject matter. If so, it is obvious that the principle of “limited expression” cannot be applied to exclude the possibility of infringement by the other party. If not, the principle of “limited expression” will apply to the latter’s work, thus ruling out the possibility of infringement.
                                                       (Translated by Zhang Meichang)

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