Plagiarism software constitutes unfair competition, Tencent wins lawsuit through creative rights protection
[4] Compiled from: Red Star News
Recently, the Shenzhen Intermediate People's Court published the 2021 Typical Civil and Administrative Intellectual Property Cases of Shenzhen Courts on its official WeChat public account.
Among them, the unfair competition dispute involving Shenzhen Tencent Computer Systems Company Limited and Tencent Technology (Shenzhen) Company Limited (hereinafter collectively referred to as “Tencent”) against Shanghai Xincha Network Technology Co., Ltd. (hereinafter referred to as “Xincha”) was included as a typical case.
Case review
Xincha Company was established in September 2018, and the WeChat official account “Youzhuan Self-Media Assistant” is the company’s sole business operation. The account once published an article titled “Breaking! The Viral Article Center Feature Is Now Live—Copy Articles and Create 100,000+ Viral Traffic Articles, So Easy!”, intended to promote its “Viral Article Center” feature, claiming that it can collect popular articles from major platforms, synchronize real-time trending searches across communities, and support one-click import of viral articles from the platform for editing, “making your article content a breeze.” Beyond directly copying others’ viral articles into the editor, Youzhuan Self-Media Assistant also stated that it can perform operations such as splicing article content, modifying titles, and swapping the opening and closing paragraphs, “to reduce article duplication and increase article originality.”
According to the court, Youzhuan Self-Media Assistant supported dozens of platforms, including Qiehao, and Tencent is the operator of the Qiehao one-stop content creation platform, where content on Qiehao is distributed to Tencent News, Tencent Video, Kuaibao, etc.
Based on the aforementioned functions, Tencent filed a lawsuit against Xincha Company, requesting the court to order Xincha Company to submit the financial books and records concerning the profits derived from the relevant software, and to compensate for economic losses and reasonable expenses incurred in safeguarding rights, totaling 4.9 million yuan.
[1] Court Opinion
The court held that the software services provided by Xinchai Company to users through its Youzhuan Self-Media Assistant did not create new works, but essentially constituted disguised plagiarism of the original works, commonly known as "content washing." The relevant conduct constituted unfair competition.
Given Xinchai Company's significant subjective malice in committing the infringement, the large scale of the infringement, and its refusal to submit financial account books showing profits derived from the infringement, the court fully supported Tencent's claim seeking 4.9 million yuan in damages from Xinchai Company.
Anti-Unfair Competition Law
Article 2
Operators shall follow the principles of voluntariness, equality, fairness, and good faith, and comply with laws and commercial ethics in their production and business activities.
Unfair competition acts as referred to in this Law refer to acts by operators that, in their production and business activities, violate the provisions of this Law, disrupt market competition order, and harm the lawful rights and interests of other operators or consumers.
Operators as referred to in this Law mean natural persons, legal persons, and unincorporated organizations engaged in the production or sale of goods or provision of services (hereinafter goods include services).
[1] The author's perspective
As mentioned in previous cases, determining plagiarism in copyright disputes is by no means easy. First, there are no fixed standards; judges can only exercise discretion based on similarity comparisons. Second, with advanced technological tools, it is now effortless to use software to “wash” content and create pseudo-original works, which has made plagiarism even more prevalent and infringement increasingly rampant.
The reason this case became a classic is not only that the Anti-Unfair Competition Law compensated for the deficiencies of the Copyright Law, but also that it embodied the principle that technological neutrality cannot exempt all technology providers from liability for infringement.
The technology provided by the new tea company is clearly infringing, and its promotion and sale of this technology to users actually induces user infringement. It does not constitute technology neutrality and should bear corresponding legal liability.
Thus, the judgment in this case is significant for combating content rewriting at its source, preventing online service providers from maliciously providing rewriting software to users, regulating self-media creation, purifying the self-media platform ecosystem, protecting the legitimate rights of copyright holders, encouraging originality, and promoting the development and prosperity of China's cultural industry.
