For Tencent, this is not the first time that companies in the industry have been brought to court for tort disputes. But this is the first case in a series of copyright disputes involving "Wechat Expressions" and "Wechat Red Pack".
Nowadays, copyright disputes often occur. The consciousness of original subject to safeguard rights is growing and the phenomenon of infringement is prohibited repeatedly. How to define "creative labor" and infringement and make appropriate decisions is not easy in the Internet era.
1. Trial: "bragging" accused of imitating "Wechat Red Pack"
Earlier this year, the plaintiff Tencent filed a complaint to bring the defendant Qingshu to court. Tencent said that the defendant, Qingshu, directly used six Wechat expressions created by Tencent without its authorization, which violated his copyright to create Wechat expressions and the right to disseminate information on the Internet.
In addition to Wechat's expression, Tencent has copyright in the design of Wechat Red Packet Chat Bubble and the related interface of Wechat Red Packet, while the "boasting" software developed and operated by Qingshu in the process of providing red Packet receiving and receiving services uses red Packet Chat Bubble and receiving and receiving interface, which are substantially similar to the artistic works advocated by Tencent and infringe upon them. Tencent enjoys the right to disseminate information on the Internet.
At the same time, the bragging chat software developed by Qingshu can easily cause confusion or misunderstanding among the relevant public by copying and imitating the whole process design of "Weixin Red Pack" and the interface and icon design of Weixin software. This behavior is suspected of clinging to the competitive advantage of Tencent's products, seeking unfair interests by "hitchhiking", violating the principle of urban credit and constituting unfair competition.
In April this year, Tencent asked Qingshu to pay 5 million yuan for its infringement of copyright on the Internet, the right to disseminate information on the Internet and profit-making through unfair competition.
On July 19, the Beijing Internet Court reopened its trial and made its final judgment. The court said that considering the social influence of Tencent's Wechat social networking software and the damage caused by copyright infringement, and the "boasting" of Qingshu's social networking software made minor innovations on the basis of Wechat interface decoration, the court decided that Qingshu would compensate Tencent for 400,000 yuan of infringement compensation and accept it as appropriate. At the same time, it rejected Tencent's larger claim.
In addition, Qingshu needs to issue a statement on its official website to reduce the loss of Tencent while compensating for the funds and software downtime.
2. Defense: Electronic red envelope is not originally created by Tencent?
The two sides have been deadlocked for several months, focusing on the details of the tort. Qingshu objected to its discretion of "embezzling the design elements of Weixin electronic red envelope", saying that before the birth of Weixin red envelope software, the network had begun to prevail related electronic red envelope, and the art design of electronic red envelope was also popular. Secondly, the design elements of Tencent's Wechat electronic red envelope follow the traditional paper red envelope design elements, belonging to public elements, so its tort determination should not be established.
In response, the court said that, according to Article 11 of the current Copyright Law of China, "if there is no proof to the contrary, the citizens, legal persons and non-legal entities signed on the works are authors." In this case, the computer software copyright registration certificate submitted by Tencent is sufficient to prove that it is the copyright owner of Wechat application software. In addition, Tencent also submitted manuscripts, screenshots of Wechat update logs and online articles to support it. In the absence of evidence to the contrary, a chain of evidence can be formed.
For Wechat red envelope borrowing traditional paper red envelope public elements, non-Wechat original defense, the court made a comparative analysis of Wechat red envelope open page, Wechat red envelope chat bubble and electronic red envelope related pages. Both sides adopt red, rectangle and other basic characteristics of traditional entity red envelope elements, but there are obvious differences in color matching and change, text, line arrangement and combination and design. These differences precisely reflect the original expression of their creators.
At the same time, the court compared the Wechat Red Packet Open Page with the "bragging" software Red Packet Open Page, and found that the Defendant Red Packet Open Page had the same elements, structure, layout and presentation effect. The difference was that the Yellow circular middle fingerprint pattern of the "Yunhong Pack" Open Page was not enough to form the overall difference in evidence. The difference makes the two designs similar in substance.
The same is true of the electronic red envelope chat bubbles, which differs from the Wechat design only in that the white box of the defendant's electronic red envelope contains the words "boasting" red envelope, and the design is similar in substance. But the "boasting" users have a large volume. From the perspective of commercial operation, it damages Tencent's economic interests. Qingdao violates the establishment of Tencent's right of information network dissemination.
3. Difficulties: tort of creative labor or
Talking about the difficulties in hearing this case, Jiang Ying, Vice President of Beijing Internet Court, said that in this case, the copyright of Tencent's artistic works is mainly embodied in social software, such as chat bubbles and red envelope opening pages. "Discretion of network design elements embodied in the software is a difficult point in the trial of the case."
"Qingdao said Wechat red envelopes follow the public domain color logo. However, in the adjudication, we need to compare the Wechat red envelope design elements with the traditional paper red envelope design elements in the public domain. By comparing the application of colors, shapes, lines and other elements, it is concluded that even though Wechat uses public domain colors, it still works creatively in its design, so we still protect it. Jiang Ying said.
In recent years, with the Internet industry, such cases of copyright infringement on the Internet have reached a peak. In 2018, social software coins should come out, and their design elements are the same as Wechat's. Subsequently, 10 million yuan was claimed on suspicion of full plagiarism.
In the same year, Tencent sued Mupupil in Shanghai, a company that had developed an early version called Endless Fighting.Mobile phoneThe game is suspected of infringing the copyright of Tencent's "Heroes Alliance" because of its large number of skill descriptions, roles and characteristics. In the end, Tencent was awarded a compensation of 19.4 million yuan.
Earlier, the 4399 platform game was also suspected to have a lot of similarities with Tencent's game "Underground City and Warriors" and paid 5 million yuan for alleged infringement of its copyright.
According to the open data of the special action of "Sword Net" reported by the State Copyright Administration, in 2017, 63,000 websites were inspected, 2554 infringement websites were closed, 710,000 links were deleted, 2.76 million infringement products were collected, 543 cases of network infringement piracy were filed and 57 criminal cases were investigated with public security departments. The amount involved is 107 million yuan.
In 2018, copyright law enforcement authorities at all levels deleted 185,000 links to infringement and piracy, and investigated 544 cases of network infringement and piracy, of which 74 cases were criminal cases and 150 million yuan were involved.
Jiang Ying added that at present, when awarding compensation, we still try our best to encourage innovation and oppose malicious imitation. Protect the plaintiff. To determine the compensation, we should not only give the plaintiff certain compensation, but also give the defendant a warning role to stop similar torts.