How to Determine "Contact" - Infringement Determination Rules in Computer Software Copyright Cases (Chinese)
Author | Intellectual Property Center, Lawyer Wang Qionghua
foreword
As mentioned above, in the trial of computer software infringement disputes, "contact + substantial similarity + exclusion of reasonable explanation" is a generally applicable computer software infringement judgment rule. This paper analyzes and discusses the determination rule of "contact" in the infringement judgment rules in the trial of computer software infringement disputes.
PART 01
The alleged infringing work is substantially similar to someone else's work, which means that the alleged infringing work may have used the relevant content of someone else's work. However, due to the possibility of creative coincidence, only the similarity of the work cannot be completely determined. At this time, if it can be confirmed that the alleged infringer has contacted someone else's work before creating his work, based on the fact that his work is similar to someone else's work, it can be presumed that the relevant content in his work comes from someone else's work.
Therefore, the function of the contact requirement is to rule out creative coincidences and help confirm that the relevant content of the alleged infringing work similar to the work of others originated from the work of others and was not independently created by the alleged infringer.[i]This is the logical basis for "contact" as one of the conditions for judging whether it constitutes copyright infringement.
PART 02
In computer software infringement disputes, "contact" means that the plaintiff has evidence that the defendant has had access to the plaintiff's software before or has actually contacted the plaintiff's work. If the defendant has worked for the plaintiff, sold software products on behalf of the plaintiff, or the plaintiff's software has been publicly published and earlier than the defendant's product, and the defendant cannot provide counter-evidence to prove that it has no access to the plaintiff's software at all, it is generally presumed that the defendant has the possibility of "contact".
PART 03
Unlike in general copyright infringement cases, where judges pay more attention to "substantially identical" and "excluding legitimate sources", because computer software is the target program for others to use, it is difficult for others to obtain the exact same expression as the source program of the right software even through decompilation measures without the copyright owner publishing the source program. Therefore, whether to "contact" the source program of the right software has independent value and plays an indispensable role.
PART 04
Whether you have come into contact with other people's works is a fact of the case and needs to be proved through evidence. Generally, it can be determined by direct identification or indirect presumption. For example, in the case of infringement of computer software copyright dispute between Zhangyoutianxia (Beijing) information technology joint stock company and Jiafengyongdao (Beijing) technology joint stock company[ii]Regarding whether the defendant constitutes software copyright infringement, the Supreme People's Court held that in the judgment of software copyright infringement, whether it is possible to access the software source code that is the object of protection is usually an important part of the judgment.
If there is conclusive evidence that the alleged infringer actually came into contact with the copyright owner's software source code, the proof requirements for the substantial similarity of the software will be reduced accordingly, and the burden of proof will be shifted. Conversely, if there is no evidence to prove the possibility of contact, it is usually determined whether the software is substantially similar through the comparison of the software source code.
If the source code of the software of both parties is substantially similar, and the alleged infringer cannot give a reasonable explanation, the infringement can be presumed to be established. According to the principle of burden of proof sharing, the plaintiff needs to preliminarily prove that the defendant has the possibility of infringement. That is, the plaintiff should first provide evidence to prove that the defendant has the opportunity to access the source code of the game software it requests protection, or that the defendant's game software is substantially similar to the game software it requests protection. If one of the above two conditions is met, the burden of proof will be transferred to the defendant, and the defendant will provide evidence to prove that it is not infringing. Otherwise, the defendant will bear the adverse consequences of failing to provide evidence.
That is, if the plaintiff company provides evidence to prove that the defendant has access to the source code of the game software involved in the case, then based on the objective situation that the defendant may have access to the source code of the alleged infringing game software, the defendant needs to submit the software source code for source code comparison to prove innocence. If it refuses to submit or submit false source code, it can be presumed that its software source code is substantially similar to the source code of the game software claimed by the defendant.
Or if, based on the comparison of the game software source code submitted by the defendant, it can be objectively confirmed that the source code of the accused infringing software is substantially similar to the source code of the plaintiff's involved software, it can be presumed based on the rule of thumb that the defendant actually contacted the source code of the plaintiff's involved software. In this case, based on the similarity in the operation of the game software between the two parties, the original court and this court tried to verify the facts of this case as much as possible through source code comparison, but they still failed to verify it.
In the case that the plaintiff has not yet provided preliminary evidence to prove that the defendant has the opportunity to access the source code of the software involved in the case, even though the defendant has not submitted the software source code corresponding to the plaintiff's notarized and preserved apk installation program, it is unknown whether the software source code of the two parties is substantially similar to the authenticity. According to the principle of burden of proof allocation, it cannot be directly deduced that the defendant's software source code is substantially similar to the game software source code protected by the plaintiff, and further presumed that the defendant actually contacted the plaintiff's game software source code.
[I] Chen Jinchuan: "Some understandings of the elements of" contact "in the rules of contact plus substantive similarity", WeChat official account "Intellectual Property Finance" September 6, 2023, https://mp.weixin.qq.com/s/qdPQllUKkjWuAu1Ch1Hgmw
[Ii] Case No.: (2020) Supreme Court Zhiminjian No. 1456
Lawyer Profile
Wang Qionghua, Lawyer
, Partner Lawyer
Secretary General, Copyright Law Professional Committee of Shenzhen Law Association
Secretary General of Zhiheng Intellectual Property Center, Deputy Director of Copyright Committee
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