The Beijing Internet Court (BIC) recently trialed a case on plagiarizing the page design of a website. The defendant was found to have committed a right infringement and illicit competition and was ordered to explain its infringement publicly as it had caused business confusion. It was also ordered to pay 206,390 yuan ($30,545.72) as economic compensation and expenses.  

Case summary:

Company W, a well-known integrated marketing communications enterprise, found that a website operated by Company Z copied and used most of the page layout design of company W's portal website. It also used four photographs and one art work of which Company W owned the copyright. Company W's name and client display wall also appeared on that website which caused confusion among its clients. Company W thus sued Company Z at the BIC, claiming copyright infringement and illicit competition.

The defendant Company Z argued that the person responsible for the website outsourced it to a third party without getting approval from Company Z. Company Z was not aware of the infringement, did not approve this behavior, and had already taken down the website. Thus it should not be liable for the consequences. 

Upon trial, the BIC concluded that:

1. The plaintiff's webpages constituted a compilation work and was entitled to copyright.

The webpages included graphic and text introduction about the company including scope of services, products, clients and news. The web designer conducted original material selection and arrangement via intellectual labor. And the web layout reflected the designer’s aesthetic sense and creativity. It had originality to some extent and was fixed via digital format on the internet. This creation was in line with the basic characteristics of compilation works and was entitled to copyright protection according to China's Copyright Law. Therefore the plaintiff held the copyright of the multiple webpages of the website involved.

2. The defendant infringed the copyright of the plaintiff.

The plaintiff's website had been open and accessible since its launch. After comparison between the plaintiff’s website and the defendant's website, six webpages were highly identical in terms of wording, picture display, titles and proportioning. Comparison also showed the defendant extensively quoted the source code of the plaintiff’s website in multiple places multiple times. It was thus decided that the defendant's webpages had substantially infringed the originality of the plaintiff’s webpages. The defendant put webpages substantially similar to the homepage of the plaintiff's website on the internet which infringed the information network dissemination right of the work.

As for the plaintiff's separate claim of infringement of information network dissemination right of the four photographs and one art work, the evidence established that the plaintiff was the right holder. The defendant used those works directly or after editing at different layers of the infringing website which constituted infringement of the information network dissemination right of those works.

3. The determination of compensation amount.

In the absence of evidence showing the actual loss of the plaintiff or the illegal profit of the defendant from the infringement, the court decided the compensation amount according to the statutory damages based on the following factors: the number of webpages involved, the defendant’s degree of intention to infringe, and the plaintiff's reasonable cost for the website or reasonable payment the defendant should pay for purchasing design services for that particular level of website.

The defendant plagiarized most webpages of the plaintiff’s website and the infringing website had been operating for over a year at least. Thus it could be determined that the defendant had a high infringing intention. Based on the evidence submitted by the plaintiff including the website design and service contract and related expense invoices, the BIC determined the defendant should compensate 120,000 yuan to the plaintiff for its infringement.

4. The defendant committed illicit competition.

Although the plaintiff and defendant’s business scopes did not much overlap, evidence showed the defendant kept the plaintiff's company name and logo on some webpages. Although the defendant argued that it was not aware of the plagiarizing, it could not sustain that it was not aware of the existence of the infringing website. Visiting that website would cause a user to associate the two companies and their businesses.

The defendant copied all the client logos from the plaintiff’s website which certainly gave the impression that both companies shared the same clients. The BIC therefore supported the plaintiff’s claim of illicit competition and ordered the defendant to compensate 40,000 yuan to the plaintiff for that cause.

Details of the judgement:

The BIC ordered the defendant to publish an explanation letter of its infringement behavior at the top of the homepage of its official website, and to pay a total of 206, 390 yuan to the plaintiff as economic losses and expenses. Both parties acknowledged the ruling and the case has now been fully enforced.