Winnie the Pooh and politics – Taiwanese horror game misstep is still copyrighted work

A horror game has made waves in the gaming community recently not only because of its content but also because of the sensitive material used.

Devotion was developed in Taiwan and launched by Red Candle Games on 19 February 2019. Initially it received positive user reviews. However, when a poster was discovered within the game bearing the text “Xi JingPing Winnie the Pooh”, followed by words that seemed to be transcribed from “you are an idiot” in Mandarin/the local Taiwanese language, the gaming community exploded. Red Candle Games’ business partners both within and outside of China immediately severed ties with the company. Negative reviews flooded in. The game developer replaced the disputed material on 21 February and offered a public apology on 23 February, explaining that the poster’s inclusion in the game was an accident and the poster was intended as trial material only. Allegedly, even Chinese pirate websites have taken down the game so as to avoid trouble. Some critics have described this as unprecedented and effective anti-pirating action.

Setting aside the political issues involved, from an IP point of view, is a sensitive or sarcastic statement copyrightable under Taiwanese law? The answer is yes. Freedom of speech, personality rights and copyright are different concepts and should be reviewed separately. According to Article 3.1.1 of the Copyright Act, an eligible work is “a creation that is within a literary, scientific, artistic, or other intellectual domain”, unless it is a non-eligible subject matter of copyright stipulated in Article 9, which include:

• the constitution, acts, regulations or official documents;
• translations or compilations of the constitution, acts, regulations or official documents by central or local government agencies;
• slogans and common symbols, terms, formulas, numerical charts, forms, notebooks or almanacs;
• oral and literary works for news reports that are intended solely to communicate facts; and
• test questions and alternative test questions from all kinds of examinations held pursuant to acts or regulations.

The most famous case regarding the eligibility of copyright protection of alleged illegal content is whether pornography is copyrightable under Taiwan law. In a decision of 1999 (Number 88 Tai Shan Zi 250), the Supreme Court stated that pornography is not copyrightable because it is against the public order. However, in a more recent case (Number 101 Shin Zi Shan Yi 74 (2014)), the IP Court said that pornography is copyrightable if it is a creation that is within a literary, scientific, artistic or other intellectual domain, since the fact that a work is pornographic is not a factor that forbids copyright protection under the Copyright Act. The IP Court found that freedom of speech is a constitutional right and will be protected, that the Agreement on Trade-Related Aspects of Intellectual Property Rights will be respected by World Trade Organisation members (of which Taiwan is one), and that criminal sanctions against the distribution of pornography is a separate issue. The IP Court decision is final after the Supreme Court rejected the appellant’s appeal in 2017.

Many consider that the poster in the game was a simple joke, playing on the alleged similarity in appearance of Xi JinPing and Winnie the Pooh; the developer stated that the connection was unintentional. However, even if the poster was deemed to be a defamatory or insulting statement, following the IP Court’s reasoning in its 2014 decision, the game and the poster are still copyrighted works. Uploading a copyrighted work without the rights holder’s consent is illegal and copyright infringement. Online platforms, website operators and service providers bear a risk of liability if they upload material contain infringing content. This is probably the first time that pirate websites in China have done something right by removing unauthorised content promptly after being notified of it.