Jin Yong v. Jiangnan case revised the judgment in the second instance: The defendant was found to have infringed copyright

The "first case of fan work infringement" - Jin Yong v. Jiangnan infringement case, which has attracted much attention, ushered in the final verdict.

A few days ago, the Guangzhou Intellectual Property Court announced the final judgment of the case: the court found that the alleged infringement constituted copyright infringement and unfair competition, respectively. The alleged novel "The Boy Here" is a "fan work" of many martial arts novels by Jin Yong, written by the well-known online novel writer Yang Zhi (pen name "Jiangnan"), mainly telling the campus stories of young people such as Qiao Feng, Guo Jing, and Ling Huchong in Bianjing University.

How is the infringement of fan works determined? How to avoid risks in the second creation? In this case, why did the court not order the defendant to stop the infringement? In response to the above three focus issues, the reporter of Nanfang Daily interviewed a number of experts to answer.

Focus 1: Infringement disputes

There is also "originality" in character relationships

Compared with the first-instance judgment in 2018, the Guangzhou Intellectual Property Court, while finding that "The Boy Here" constituted unfair competition, clearly determined that it infringed Jin Yong's copyright.

Mou Jinjun, the plaintiff's lawyer in this case and director of the intellectual property department of Beijing Yingke (Guangzhou) Law Firm, believes that one of the highlights of the final judgment lies in the fact that the names, personalities, relationships and other elements of characters in literary works fall within the scope of protection of the Copyright Law.

"The Copyright Law does not protect the idea itself, but it protects the way it is expressed." Hu Ziqi, an intellectual property lawyer at Guangdong Guoding Law Firm, believes that the focus of this case is to determine whether the similar elements or contents of the works involved belong to "expression" or "thought".

In literary works, how to distinguish between "thought" and "expression"? Hu Ziqi introduced that the author's subjective category of thought ideas, such as ideas, identifying symbols, emotions or opinions themselves usually belong to "thoughts"; The internalization of internal thoughts into actual objective and reproducible intellectual achievements through certain symbolic forms, such as specific plots and metaphorical texts formed by the author's personalized selection and arrangement, generally belongs to "expression".

The Guangzhou Intellectual Property Court held that although the expression of the storyline of "The Boy Here" does not constitute substantial similarities with Jin Yong's works, on the whole, the group portraits composed of more than 60 characters such as Guo Jing and Huang Rong, whether in terms of the characters' names, character characteristics, character relationships and backgrounds, reflect Jin Yong's choices and arrangements, and can be identified as having been fully described and specific enough to form a structure with strong logical connections between internal elements, which belongs to the "expression" protected by the Copyright Law.

Based on this, the court held that the names, main characters, and character relationships of most of the characters in "The Boy Here" had many similarities with Jin Yong's novels involved in the case, and there was plagiarism and plagiarism, which infringed the copyright of the works involved in the case.

How to understand the "structure with strong logical connection" mentioned in the judgment? The reporter noticed that the "Legend of the Condor Heroes", "The Condor Heroes" and "The Legend of Relying on the Sky and Slaying the Dragon" involved in the case are called the "Condor Trilogy", and the characters in the three books are relatively closely connected, and characters such as Guo Jing, Huang Rong, Eastern Evil, and Western Poison appear repeatedly in different works, together constituting a "martial arts universe" of sword and shadow.

Hu Ziqi believes that the final judgment considers the multiple characters in Jin Yong's works as a whole to form a structure with logical connections, and notes the organic connection between characters in different works, so it is regarded as an original "expression".

Focus 2: The court has not ordered the infringement to stop

Compensation substitution is in line with the original intent of the legislation

The reporter noted that the court of second instance only ordered the defendant to stop the act of unfair competition, but did not order it to stop the infringement, but clarified that if "The Boy Here" needs to be republished, it should pay economic compensation to the rights holders of the four works "The Legend of the Condor Heroes", "Dragon Babu", "Smiling Rivers and Lakes" and "The Condor Heroes".

"In IP litigation, there are relatively few cases where infringement is determined but not ceased, but it is not an isolated case." Meng Xiangjuan, a professor at the School of Intellectual Property of South China University of Technology, said that such situations are mostly the result of the court's weighing of public interests and private interests, and there are corresponding judicial interpretations and judicial practices in the field of patent law.

The judgment mentions that forms of liability such as cessation of infringement are not automatically applicable, but are chosen by the court according to the specific circumstances. The court of second instance took into account that "The Youth Here" and the four works of Jin Yong involved in the case belong to different categories of literary works in terms of characters, and the readership is differentiated. In order to meet the diverse needs of readers, balance the interests of all parties, and promote the development and prosperity of cultural undertakings, the infringement shall not be stopped on the premise of taking full and effective comprehensive compensation or paying economic compensation.

"In addition to the infringing content such as the character character that has been identified, the plot of "The Boy Here" also has its originality and is also protected by copyright." Yao Guolin, a partner at Guangdong Jinling Law Firm, said. Meng Xiangjuan also believes that allowing works to circulate, while encouraging creation, also allows adaptation authors to compensate the original author by paying royalties, and replacing infringement liability with reasonable royalties, which is also in line with the legislative purpose of the Copyright Law.

During the second instance of this case, Jin Yong died, and Lin Mouyi was the executor of his estate and participated in the lawsuit as an appellant. Mou Jinjun revealed to the Nanfang Daily reporter that at present, the plaintiff agrees that the second-instance judgment is a copyright infringement, but does not agree that the defendant does not need to stop the infringement and can continue to publish. As for whether the plaintiff will apply for a retrial, Mou Jinjun said that he has not yet received a new request from the party.

Focus 3: The boundary of "second creation" behavior

The lawyer recommends obtaining authorization for the original work

In judicial practice, how to determine the infringement of fan works?

"To determine whether infringement is constituted, on the one hand, it is necessary to judge the subjective will of the perpetrator, and on the other hand, to judge whether his act is an adaptation of the original expression in the work of others." Yao Guolin believes that compared with other copyright disputes, the infringement of fan works based on the original work is more complex and controversial.

Hu Ziqi said that because the creation of fan works will inevitably "borrow" some elements or settings of the original work, and the law cannot clearly divide the content that can be drawn on for each work, this requires the adaptor to avoid the risk of infringement as much as possible.

"In the spirit of respecting originality, adaptors should obtain relevant authorization from the original author." Hu Ziqi suggested that the second creator could pay tribute to the original in some details through "Easter eggs" and other forms, rather than transplanting relevant settings, story synopsis, and plot settings extensively.

"In addition, if the original work has formed a certain popularity and influence among its readers, the second creator shall not 'borrow' the influence of the original work for publicity, and should make a clear statement to avoid readers mistakenly believing that there is a specific connection between the two works or the two authors, otherwise it will usually constitute unfair competition." Hu Ziqi said.

Nanfang Daily reporter Meng Jian Wang Jiaxin