Basic Facts of the Case
Company B is the exclusive authorized operator of the game “X Chanchan’s Road to Wealth Mobile Game Software V2.0.0”. It discovered that a website under a domain name operated by Company A provided downloads of the allegedly infringing game. The alleged infringing game was a cracked version of the legitimate game, in which the “watch ads to earn tokens” function had been disabled.
Company B filed a lawsuit requesting compensation of RMB 200,000 for economic losses and RMB 15,800 for reasonable enforcement expenses. Company A argued in its defense that Company B lacked standing, that the game did not possess an ISBN and therefore lacked lawful online publication qualifications, that it had not committed any infringing acts, and that even if infringement were found, no actual damage had been caused (as the alleged infringing game existed for only four months, had only 39 downloads, and had already been removed).
Court’s Opinions
(I) Determination of Infringing Conduct
The court of first instance held that although it could not directly determine that Company A had carried out acts of reproduction of the game at issue, Company A knew or should have known that the alleged infringing game had disabled advertising and other functions. Nevertheless, Company A still provided the game for download through its operated website, enabling the public to obtain the corresponding version of the game at a time and place of their choosing. This conduct infringed Company B’s right of information network dissemination in respect of the game, and Company A should bear infringement liability.
Company A appealed the judgment, expressing dissatisfaction with the compensation amount. Its primary grounds for appeal were that the allocation of the burden of proof regarding damages was unfair and that Company B was at fault due to illegal publication. Company A did not rebut the determination of infringing conduct.
The court of second instance held that the compensation amount and reasonable expenses determined in the first-instance judgment were appropriate, dismissed the appeal, and upheld the original judgment.
(II) Whether the Absence of an ISBN Affects Rights Enforcement
Throughout the proceedings, Company A argued that Company B was not a proper plaintiff on the grounds that it had not obtained a game ISBN and lacked lawful online publication qualifications, and therefore should not be entitled to revenue. Both the court of first instance and the court of second instance provided reasoned responses to this argument.
The court of first instance held that Company B had obtained exclusive authorization for the relevant period and territory with respect to the right of reproduction and the right of information network dissemination of the game at issue. Obtaining a game ISBN was not a prerequisite or basis for Company B to file a lawsuit against copyright infringement by others. Accordingly, Company B had the right to initiate the present litigation against the alleged infringing conduct.
The court of second instance further held that whether the game at issue had obtained an ISBN bore no direct or necessary relationship to whether it could receive protection under the Copyright Law. Obtaining an ISBN or completing filing procedures serves primarily the needs of administrative regulation, and does not mean that games without an ISBN or filing may be freely subjected to acts such as information network dissemination by others without authorization, nor does it mean that the rights holder is not entitled to compensation for damages.
(III) Judgment Result
After comprehensively considering factors such as the nature of the game at issue, its market evaluation and popularity, the duration of the infringing conduct, and the specific circumstances of the infringement, the court ultimately ruled that Company A should compensate Company B RMB 65,000 for economic losses and RMB 5,000 for reasonable expenses.
Lawyer’s Analysis
Many casual games, due to their simple gameplay and absence of in-app purchases or recharge mechanisms, have not applied for ISBN registration and approval. However, whether a game has obtained an ISBN does not conflict with claiming copyright protection. Copyright arises upon completion of the creation of a work, and does not depend on whether an ISBN has been obtained.
Independent developers who encounter infringement should not be overly concerned that administrative approval deficiencies may affect copyright protection. From the perspective of litigation and evidence collection, developers should pay attention to the following points:
1. Timely Preservation of Evidence
After discovering infringing conduct, developers should promptly preserve relevant evidence through notarization or other means, including the allegedly infringing game content, promotional materials, and usage scenarios. Notarization enhances the legal effectiveness of evidence and ensures its authenticity and integrity. At present, there are also many convenient electronic notarization tools available for timely evidence preservation.
2. Retention of Creation and Development Evidence
Developers should retain various documents and records generated during the game development process, such as source code, original character design drafts, and computer records documenting the development process. These materials can prove the creation time and ownership of the game. Developers should also timely apply for relevant rights certificates based on the type of work involved, such as computer software copyright registration and art work registration.
3. Attention to the Specific Forms of Infringing Conduct
It is necessary to analyze whether the infringing party’s conduct involves the right of modification, right of reproduction, or right of information network dissemination, among others. For example, in cases of unauthorized game “porting,” attention should be paid to whether the conduct involves code modification, game reproduction, and online dissemination, or merely simple “packet capturing.”
4. Strengthening Monitoring and Early Warning Mechanisms
Developers should establish infringement monitoring mechanisms and conduct regular or irregular market inspections to timely identify potential infringing activities. This may be achieved through network monitoring tools and close attention to industry developments.
5. Leveraging Professional Support and Retaining Evidence of Enforcement Costs
Lawyers possess specialized legal knowledge and litigation experience and can assist in formulating enforcement strategies, guiding evidence collection and organization, and improving the success rate of rights protection. Where necessary, professional judicial appraisal institutions may also be engaged to assess game similarity and issue expert appraisal reports as evidence. Developers should also collect and retain evidence of all expenses incurred for rights enforcement, such as attorney’s fees, notarization fees, and travel expenses, in order to fully claim such reasonable costs if compensation is awarded.
It should be noted, however, that although games without an ISBN may still claim copyright protection, this does not mean that games without an ISBN may be freely operated or monetized. In litigation, the absence of an ISBN may be used by infringers as a key argument to reduce compensation.
If a game has not obtained approval and an ISBN, the copyright holder may be unable to exercise corresponding copyrights through online publication and distribution, thereby affecting its right to obtain remuneration from the work. When claiming infringement damages, the rights holder may be unable to prove actual losses and may therefore need to rely more heavily on statutory damages, under which judges determine compensation amounts by comprehensively considering factors such as the nature of the game, its market evaluation and popularity, the duration of the infringement, and the specific circumstances of the infringing conduct.
