Capcom Co Ltd and Another v. Pioneer Technologies Ltd and Another

HCMP 828/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 828 OF 2008

(ON AN INTENDED APPEAL FROM DCCJ NO. 2655 OF 2007)

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Before: Hon Tang VP and Yeung JA in Court

Date of Hearing: 4 June 2008

Date of Decision: 4 June 2008

Date of Reasons for Decision: 10 June 2008

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REASONS FOR DECISION

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Hon Tang VP (giving the reasons for decision of the Court):

1.The 1^st plaintiff claimed to be the copyright owner of a video game called “Monster Hunter Portable”.  The 1^st plaintiff claimed that its copyright has been infringed by the defendants’ magazine “PSP 超級玩樂誌（2007年新春特別號）” (“Magazine”) because the defendants had reproduced “images” identical or substantially similar to the copyright work without its authority.

2.The defendants did not dispute the use of “images” identical or substantially similar to frames from the copyright works, but claimed by way of defence that such importation and inclusion in the Magazine was “for the purpose of criticism or review”, constituting fair dealing within the meaning of section 39(1) of the Copyright Ordinance, Cap. 528.

3.On 7 March 2008, District Judge Mimmie Chan dismissed the plaintiff’s application for summary judgment.  She was of the view that the defendants had an arguable defence of fair dealing.  She said:

“33.  On the facts of the present case, and taking into consideration the fact that Capcom does not rely on its copyright in any strategy guide book for the Game in its claim of infringement made against Pioneer in these proceedings, and the extent of use of the frames or images in the context of the contents of the Article, my overall impression is that the Article was as a whole made for the purpose of review.  Judging by the objective standard of a fair-minded and honest person, I am satisfied that Pioneer's use of the frames and images in the Article can be said to be ‘fair dealing’.

34.   It is important to bear in mind that at this stage, it is impossible and indeed inappropriate for a judge to see the film (in its traditional sense) or to examine all the images in the Game (if this is possible, or necessary).  It may be that at trial, the claim by Pioneer that the purpose of the Article is for criticism and review will be shaken.  However, I only need to be persuaded at this stage that Pioneer has an arguable defence under section 39 (1) of the Copyright Ordinance.”

4.The 1^st plaintiff’s application for leave to appeal was dismissed by the learned judge on 17 April 2008.

5.She said:

“19.  In this case, there are clearly facts in dispute as summarized by Counsel for Pioneer.  In any event, it was made clear in the Decision that in my judgment, Pioneer has an arguable defence on fair dealing, and that there are triable issues in relation to such defence such that the matter should proceed to trial.  I am not satisfied that there are realistic prospects of success on this ground of appeal.”

6.On 13 May 2008, Cheung JA refused leave to appeal.

7.We have also refused leave.  We do not believe there is any reasonable prospect of the Court of Appeal allowing the appeal.  This case involves questions of mixed law and fact and might require expert evidence.  It should go to trial.  In such cases, it is inconceivable that the Court of Appeal would overturn the decision.

8.Mr Lin Feng, appearing for the 1^st plaintiff, submitted that the learned judge was wrong to have relied on the wide dictionary meaning of “review”.  But we believe the matter is certainly arguable.

9.Mr Lin further submitted that at least in relation to some of the images reproduced, the judgment should have been given in the 1^st plaintiff’s favour.  He relied on the following observation in the judgment:

“30.  There are instances in which the instructions or tips given can be given without the frames included, but there are only approximately 10 of such instances, and they constitute a minority of the total number of approximately 86 images or frames incorporated in the Article.”

10.But the learned judge went on to say:

“30.  … On the whole, I am satisfied that the incorporation and use of the images is necessary for the review made in the Article.”

11.We do not agree that the learned judge’s conclusion was clearly wrong.

12.For the above reasons, we dismissed the application for leave to appeal.

Mr. Lin Feng, instructed by Messrs William Lam & Co., for the 1^st Plaintiff.