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52017.08.23 EditionThrough the portrayal of a company commander, an instructor, and a mystical warhorsebefore and after their cavalry company is demobilized, Carrying a Gun to Travel Around theWorld on Horseback describes the glorious history of the cavalry, the demobilization of thecavalry company, and the strong passion felt by the officers and soldiers of the cavalry company,especially the cavalry company commander, towards the cavalry and their warhorses.Carrying a Gun to Travel Around the World on Horseback depicts[, inter alia,] thefollowing: the mysterious background of the mystical horse (No. 15 Army Horse); the perfectharmony between the company commander and his army horse; the character of instructor KONGYuehua; the company commander’s composition of poetry; [the company commander’s] father’sexperience serving as a regiment commander; the significant role to be played by cavalry in futurewars; the efforts made by the company commander to save the cavalry company; the ultimatedemobilization of the cavalry company; and the tragic ending of the company commander and themystical horse.In the Lei Series, the origins of the “heavenly horse” are also mysterious. With respect tothe above-mentioned content of the plot, the Lei Series is basically similar to that of Carrying aGun to Travel Around the World on Horseback, with the exception that the father of companycommander CHANG Wentian was a cavalry division commander [rather than a regimentcommander].The book The Boundless Grey Sky tells a tale, suffused with legend and mystery, about thelast cavalry company in the Chinese army. The book depicts a legendary story about life on thegrassland and in the cavalry (e.g., the emotional [bonds] between humans and horses as well as thegenetic value of the last remaining wild horse), an old man who studies the language of horses, amysterious foreteller, and the last wild horse’s triumph at a Hong Kong racetrack.In The Boundless Grey Sky, the father of [cavalry] company commander CHENG Tian wasthe commander of a former cavalry division. [CHENG Tian’s] commanding officer was the firstcommander of Shannan Cavalry Company and is a former subordinate of CHENG Tian’s father.Since childhood, CHENG Tian has been secretly in love with his commanding officer’s daughter,LAN Jing. Instructor WANG Qingyi and LAN Jing are in love and [WANG Qingyi] works tospark a romance between CHENG Tian and LIU Keke, a geneticist. In the end, companycommander [CHENG Tian] sacrifices his life in order to rescue (a) researcher(s) trapped in aswamp.20In the Lei Series, GAO Bo takes “Da La Ma”, a former instructor’s horse that runs swiftlyand steadily and is good-tempered, and gives it to [company commander] CHANG Wentian toserve as his temporary mount. In the end, the company commander sacrifices himself whilemaking an arrest. The description of the relationship between instructor KONG Yuehua andcompany commander CHANG Wentian in the Lei Series is similar to the plot content regarding20The original text does not distinguish between singular “researcher” and plural “researchers”: �牲”.Copyright 2017 by Stanford University

62017.08.23 Editionthe relationship between instructor WANG Qingyi and company commander CHENG Tian in TheBoundless Grey Sky.The court entrusted, in accordance with law, the Copyright Authentication Committee ofCopyright Protection Center of China21 to carry out appraisals of the Zhang Series and the LeiSeries [and the appraisals yielded] the following conclusions: 1. the setup of the main charactersand their relationships are partially similar; 2. the main threads and sequences of ideas, i.e., thereduction ([or] demobilization) of cavalry units, have similarities; 3. [their] plots are partially thesame or similar, but, with the exception of one verbal expression that is basically the same [in eachseries], the specific expressions of the plots are basically different. The plot [point] with abasically identical verbal expression refers to the statement, made by the male lead of each work,that he is “willing to be a herdsman”. In the fourth episode of the television series of the ZhangSeries, QIN Dongji says: “The greenland is [my] home, [I] treat [my] horse as [my] partner, [Iwant to] be a herdsman.” In the 18th episode of the Lei Series, CHANG Wentian says: “[I] treatthe greenland as [my] home and [my] horse as [my] partner. Have you seen the film TheHerdsman?22 [I want to] be a free herdsman.”23Results of the AdjudicationOn July 13, 2011, the Intermediate People’s Court of Jinan Municipality, ShandongProvince, rendered the (2010) Ji Min San Chu Zi No. 84 Civil Judgment:24 [the court] rejects all ofZHANG Xiaoyan’s litigation requests. Unconvinced, ZHANG Xiaoyan appealed. On June 14,2012, the Higher People’s Court of Shandong Province rendered the (2011) Lu Min San Zhong ZiNo. 194 Civil Judgment: 25 [the court] rejects the appeal and upholds the original judgment.Unconvinced, ZHANG Xiaoyan applied to the Supreme People’s Court for a retrial. 26 On21The name � is translated here as the “Copyright AuthenticationCommittee of Copyright Protection Center of China” in accordance with the translation used in Guiding Case No. SHI Honglin v. Taizhou HuarenElectronic Information Co., Ltd., A Dispute over Computer Software Copyright Infringement), STANFORD LAWSCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC49), Nov. 15, 2015Edition, case-49.22The name “《牧马人》” is translated herein as “The Herdsman” in accordance with a Wikipedia articleconcerning the movie, at https://en.wikipedia.org/wiki/The Herdsman.23In the original text, these quotations appear as “愿做牧马人” (“willing to be a herdsman”), � (“The greenland is [my] home, [I] treat [my] horse as [my] partner, [I want to] be aherdsman”), and �《牧马人》吗 ? 做个自由的牧马人” (“[I] treat thegreenland as [my] home and [my] horse as [my] partner. Have you seen the film The Herdsman? [I want to] be afree herdsman”).24The first-instance judgment has not been found and may have been excluded from publication.25The second-instance judgment has not been found and may have been excluded from publication.26The original text reads “申请再审” (“applied [.] for a retrial”). Article 199 of the Civil Procedure Law ofthe People’s Republic of China provides, inter alia, that a party who considers an effective judgment or ruling to beerroneous may apply to the court at the next higher level for a retrial. See 《中华人民共和国民事诉讼法》 (CivilCopyright 2017 by Stanford University

72017.08.23 EditionNovember 28, 2014, the Supreme People’s Court, after review, rendered the (2013) Min Shen ZiNo. 1049 Civil Ruling:27 [the court] rejects ZHANG Xiaoyan’s application for a retrial.Reasons for the AdjudicationIn the effective ruling, the court opined:28 the focal point of the dispute in this case waswhether the script and television series of the Lei Series infringed upon the copyrights [associatedwith] the script and television series of the Zhang Series.A judgment as to whether a work constitutes an infringement of [copy]rights should bemade from two aspects: 29 whether the author of the allegedly infringing work has ever been“exposed” to the work of the right-holder who demands protection and whether there is [any]“substantive similarity” between the allegedly infringing work and the right-holder’s work.None of the parties in this case disputed [the fact] that LEI Xianhe had been exposed to thescript and television series of the Zhang Series. The key question of this case was whether therewas [any] “substantive similarity” between the two works.The Copyright Law of China30 protects the expressions of an author, in a work, that haveoriginality, i.e., forms of showing [the author’s] thoughts or emotions. [The protection] does notcover the thoughts or emotions themselves reflected in the work. Thoughts, as referred to here,include understandings of material existence, objective facts, human emotions, and thinkingmethods. [Thoughts] are objects that [a person] describes and shows and [they] fall within theambit of subjectivity. Creation is a process that can be perceived by others and during whichthinkers, by means of material media, show ideas by recourse to forms, convert imagery to images,and convert [something] abstract, subjective, or intangible to [something] concrete, objective, ortangible. Expressions which are formed by creation and which have originality are a type of workprotected by the Copyright Law.Expressions protected by the Copyright Law do not merely refer to the text, color, lines,and symbols of the final form [of a work]. When the content of a work is used to manifest theauthor’s thoughts and emotions, the content is also a type of expression protected by the CopyrightProcedure Law of the People’s Republic of China), passed on, issued on, and effective as of Apr. 9, 1991, amendedthree times, most recently on June 27, 2017, effective as of July 1, 2017, http://www.npc.gov.cn/npc/xinwen/201706/29/content 2024892.htm.27See �属侵权纠纷申请再审民事裁定书》 (LEI Xianhe, ZHAO Qi,,and ZHANG Xiaoyan et al., The Civil Ruling on an Application for Retrial of a Copyright Infringement Dispute)（2013）民申字第 1049 号）((2013) Min Shen Zi No. 1049 Civil Ruling), supra note 9.28The original text does not specify which court opined. Given the context, this should be the SupremePeople’s Court.29In the Main Points of the Adjudication of this Guiding Case, the aspects to be used are not said to be “two”;moreover, the list of aspects there ends with “等”.30The original text reads “我国” (“my/our country”) and is translated here as “China”.Copyright 2017 by Stanford University

82017.08.23 EditionLaw. However, creative ideas, source material, or public domain information [as well as] forms ofcreation, necessary scenes, or expressions that are unique or limited are excluded from the scopeof protection of the Copyright Law. Necessary scenes refer to certain events, roles, layouts, andscenes that are inevitable and must be used when a certain theme is selected for creation. Suchindispensable ways of giving expression to a particular theme are not protected by the CopyrightLaw. The term “expressions that are unique or limited” refers to [instances] where there areunique or limited forms of expression for a certain thought. These expressions are deemedthoughts and are also not provided with copyright protection.When judging whether there is [any] substantive similarity between the Lei Series and theZhang Series, [a people’s court] should compare the expressions of thoughts and emotions in thesetwo works. [The court should compare] the authors’ choices, selections, arrangements, anddesigns,31 as expressed in the works, [to determine whether they] are the same or similar, ratherthan departing from expressions to look at other aspects, such as thoughts, emotions, creative ideas,objects, etc. [The Supreme People’s Court considered] the following aspects, in combination withZHANG Xiaoyan’s claims, to carry out its analysis and judgment.Concerning the claim made by ZHANG Xiaoyan that the main line of the subject matter inthe Lei Series and [that in] the Zhang Series are the same.Because both the Lei Series and Carrying a Gun to Travel Around the World onHorseback, by closely [following] the theme and situation about “a hero’s dead end, acavalryman’s swan song”, describe stories about “the last cavalryman” before and afterdemobilization, [the Supreme People’s Court] could determine that the main line of the subjectmatter as well as the overall thread and sequence of ideas in the Lei Series are from Carrying aGun to Travel Around the World on Horseback.The Zhang Series, the Lei Series, Carrying a Gun to Travel Around the World onHorseback, and The Boundless Grey Sky are four works that [are] on military and historicalsubject matters [and] take the demobilization ([or] reduction) of cavalry units during the [military]“streamlining and reorganization” of the mid-1980s as their main line. [This main line] iscommon wealth of society and cannot be monopolized by individuals. Therefore, the authors ofthese four works have the right to use, in their own ways, such [historical] subject matter and tocreate works [based on it]. Consequently, even if there exist some similarities between the mainline of the subject matter in the Lei Series and [that in] the Zhang Series, because the main line ofthe subject matter is not protected by the Copyright Law, and the main line of the subject matter inthe Lei Series is from Carrying a Gun to Travel Around the World on Horseback, which was theearliest [of the works] published, [the court] could not determine that the Lei Series was copiedfrom the Zhang Series.31In the Main Points of the Adjudication of this Guiding Case, this list ends with “等”: �择、安排、设计等” (“choices, selections, arrangements, designs, etc.”).Copyright 2017 by Stanford University

92017.08.23 EditionConcerning the claim made by ZHANG Xiaoyan that the setups of the main characters andtheir relationships in the Lei Series and Zhang Series are the same or similarThe aforementioned four works are all on military subject matters [and] take thedemobilization ([or] reduction) of cavalry units during a certain historical period as their main line.Except for Carrying a Gun to Travel Around the World on Horseback, which is limited by thelength of short fiction and, [thus, does not include] any triangular love relationship or relationshipbetween the military and civilians, the other three works all cover such setups of the maincharacters and their relationships as the triangular love relationships, the superior-inferiorrelationships between officials and soldiers, and the relationship between the military and civilians.These ways of depicting [this subject matter involve] necessary scenes that are inevitable and[must be] used in a work about the military subject matter. Because the ways of giving expressionto [this subject matter] are limited, they are not protected by the Copyright Law.Concerning the claim made by ZHANG Xiaoyan that the verbal expressions and the plotsof the stories in the Lei Series and the Zhang Series are the same or similarLooking at verbal expressions, for example, the verbal expressions “be a free herdsman”and “be a herdsman” [used] in the Lei Series and Zhang Series, [respectively,] are basically thesame. However, these verbal expressions are a type of phrase customarily used in a specificcontext; they are not original expressions.Looking at the plots of the stories, a story plot that is used to manifest an author’s thoughtsand emotions falls within the ambit of expression. A story plot that has originality should beprotected by the Copyright Law. However, [if] only some elements of the plots of the stories arethe same or similar, [one] cannot necessarily draw the conclusion that the plots of the stories arethe same or similar. The parts of the aforementioned four works that are the same or similar aremostly a type of public domain source material or source material that lacks originality. In someof [these parts], some elements in the plots of the stories are the same, but the specific content andthe meanings expressed [by these elements] as unfolded by the plots are not the same. Thesecond-instance court determined that six points of the plots of the stories in the Lei Series andZhang Series are the same or similar. Among [these points are] those about the relationship with aformer subordinate, about assigning a temporary mount, etc., and similar plot content also appearsin The Boundless Grey Sky. Although the plot designs in other parts [of the two series] are thesame or similar, some of these merely [show] that a few elements used in the expression of theplots are the same or similar. The parts [of the two series] with the same or similar plot contentare few and insignificant.Overall, [in] the Lei Series and the Zhang Series, the specific unfoldings of the plots aredifferent, the focuses of the depictions are different, the personalities of the lead characters aredifferent, and the endings are different. The plots of the stories of the two [series] that are thesame or similar account for an extremely low proportion in the Lei Series and are of secondaryimportance in its entire story plot. They do not constitute the main parts of the Lei Series and willCopyright 2017 by Stanford University

102017.08.23 Editionnot cause the readers and viewers to have the same or similar experiences in appreciating the twoworks. [Therefore, one] cannot draw the conclusion that the two works have [any] substantivesimilarity.Article 15 of the Interpretation of the Supreme People’s Court on Several IssuesConcerning the Application of Law in the Adjudication of Copyright Civil Disputes32 provides:[Where] works on the same subject matter are created by different authors and theexpression of [each] work is completed independently and has creativity, [a people’scourt] should determine that [each] author enjoys independent copyrights.The Lei Series and the Zhang Series are works on the same subject matter created [independently]by different authors. Accordingly, the two series have originality and [each author] enjoyedindependent copyright.(Adjudication personnel of the effective judgment: YU Xiaobai, LUO Dian, and LI 》 (Interpretation of theSupreme People’s Court on Several Issues Concerning the Application of Law in the Adjudication of Copyright CivilDisputes), passed by the Adjudication Committee of the Supreme People’s Court on Oct. 12, 2002, issued on Oct. 12,2002, effective as of Oct. 15, 2002, 1/content 1462863.htm.Copyright 2017 by Stanford University

Video & Book Co., Ltd.” 8 The name “《齐鲁晚报》” is translated here literally as “Qilu Evening News”. 9 In the original judgment, the Supreme People’s Court’s ordered LEI Xianhe and ZHAO Qi to j