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White paper suggestion: make it clear that online games as a whole are audiovisual works



In order to promote the sustainable and healthy development of the online game industry, the “White Paper on the Protection of Intellectual Property Rights for Online Games” proposes to take advantage of the opportunity to amend the “Copyright Law of the People’s Republic of China” at the legislative level to integrate the current law’s provisions on movies and quasi-film works into audiovisual works. Online games as a whole are audiovisual works;

From the level of administrative law enforcement, we can consider regularly publishing and establishing blacklists of infringing games and companies, smoothing out complaint channels, and taking timely administrative measures against game infringements; from the judicial level, corresponding trial guidelines should be issued to unify judicial judgment standards, and based on online games The characteristics of the industry can be considered to reduce the cost of litigation rights protection and appropriately increase the amount of compensation.

After more than 20 years of development, the online game industry has become an important field for the development of my country’s pan-entertainment industry, bringing new impetus to the Internet market economy.

The online game industry has many characteristics that are different from traditional industries, such as rapid development, fast update and iteration of game products, diverse participants, diversified profit channels, and complex supply and demand industrial chains, which pose new problems and challenges to the protection of intellectual property rights of online games in my country .

The “White Paper on the Protection of Intellectual Property Rights in Online Games” (hereinafter referred to as the white paper) jointly issued by the Online Game Copyright Work Committee of the China Copyright Association and the Institute of Intellectual Property and Competition Law of Shanghai Jiaotong University (hereinafter referred to as the white paper) shows that the nature of online games and their rights ownership issues, The legal protection of game rules, online game adaptation rights, and online game infringement legal liability issues still have major controversies that require urgent attention.

Especially with regard to the nature of online games, the white paper suggests to take advantage of the opportunity to revise the Copyright Law of the People’s Republic of China to integrate the current law’s provisions on movies and quasi-film works into audio-visual works, making it clear that online games as a whole are audio-visual works.

Cross-border competition in the online game market intensifies

Unknowingly, my country’s online game industry, which sprouted at the end of the 20th century, has passed the initial stage, rapid development stage, explosive stage, policy adjustment stage, and entered a mature stage. In the words of the white paper, “the industry is showing steady growth. , Risks and opportunities coexist”.

The white paper pointed out that in recent years, with the development of online games, the peripheral industries surrounding games have also developed rapidly, such as e-sports, live games, film and television, animation, and advertising. With games as the core content, it will accelerate the development of digital entertainment industries such as e-sports, game live broadcasts, and short videos.

In June 2020, iResearch Group released the “2020 China Social Entertainment Video Research Report”, showing that users on different platforms have a high degree of overlap. About 60% of game and entertainment live broadcast users are also short video users. Moreover, users of different content themes are highly overlapping. On the game live broadcast platform and the entertainment live broadcast platform, respectively, 77.3% and 62.6% of users watch the game and entertainment live content at the same time.

At the same time, cross-industry competition in the online game market has become more intense. Guo Chengjie, director of the interactive entertainment vertical research department of iResearch Consulting Group, said that short videos are a very important traffic portal that users can open anytime and anywhere. You can find more anchors without waiting for them to go online every day. From the perspective of the entire game video market, if you only look at the game live broadcast platform, the narrower game live broadcast platform or the game live broadcast platform, such as Huya, Douyu, Penguin e-sports, CC live broadcast, etc., the situation is basically very stable. . The game live broadcast content is far more than these platforms are operating. Station B, YY, and Kuaishou are all doing game live broadcasts. From the overall competition level of the industry, short video live broadcasts have begun to compete across borders.

“In the future, competition in the game industry is no longer simply a competition of’quantity’, but more of a competition of’quality’.” The white paper pointed out that in the context of stricter approval of game version numbers, manufacturers with weaker strength and competitiveness will The accelerated elimination by the market and the strengthening of the head effect force game companies to improve their overall innovation and R&D capabilities, deliver positive value, and create high-quality, high-quality games. The market competition in the online game industry will transform from a comparison of scale and volume to a comparison of content and quality.

Judicial judgement is mostly based on film-like works

In the prosperous development of the online game industry, some new hot issues that are different from the traditional fields have also emerged one after another, bringing new challenges to my country’s intellectual property protection work.

Professor Kong Xiangjun, Dean of Kaiyuan Law School of Shanghai Jiaotong University, said that online games involve many aspects, including trademarks, patents, copyrights, and unfair competition, and they are a cross-cutting field. The rapid development of formats, business models, and technologies in the field of online games has triggered many legal issues. The legal issues involved are directly related to the technical business model, and the development of technology and business models is an important force to promote legal development.

The most controversial and concern is the nature of online games and the ownership of rights. Taking the nature of online games as an example, Zhang Ying, a judge of Shanghai Higher People’s Court, observed that there are different judgment ideas in judicial practice.

From the current point of view, some online games are protected by the Anti-Unfair Competition Law; some treat online games as computer software to protect them; some use certain elements in online games as works of art, music, and other types of works Protect the continuous dynamic images of online games as movie-like works.

It is worth noting that in recent years, the judging idea of ​​using movie-like works to characterize continuous dynamic images of online games and to protect their copyrights is gaining recognition. The “Miracle MU” case is the first case in the country where the overall picture of an online game is protected as a movie-like work. In this case, the trial court held that “the overall screen of the “Miracle MU” game is all in terms of its level setting, map name and pattern design of maps and scene graphs, professional role setting and skill design, and the design of weapons and equipment. It is original, and the game screen can be copied in a tangible form. The constitutional elements of the work that meet the above-mentioned laws and regulations are works in the meaning of copyright law. The classification of works in China’s copyright law is based on their manifestation. For the category of movies The form of expression of this kind of work lies in the composition of continuous moving pictures, which is also a characteristic constituent element that is different from static picture works. “Miracle MU” also presents continuous moving pictures during its operation, which has the form of expression like movie works. Therefore, the overall picture of the “Miracle MU” game constitutes a movie work”.

The same judging thinking is also reflected in the “Fantasy Westward Journey” case. Regarding the qualitative issue of the game involved in the case, the Guangdong Higher People’s Court pointed out in its judgment that “the continuous dynamic picture of the game involved in the case running on the terminal device can be regarded as a movie-like works”.

“For the attributes of the operating screens of online games, many courts have recognized them as film-like works.” Zhang Ying said, Article 2 (1) of the Berne Convention describes film-like works as similar to film-making methods. Represented works, my country’s copyright law also uses the form of expression as the basic classification standard. However, creative methods or technical means should not become a characteristic element of a film work. “Film-like works on a certain medium should also mean fixing continuous images on a material carrier.”

The white paper believes that the continuous dynamic pictures generated by the operation of online games meet the requirements of “ingenuity” and also meet the relevant requirements stipulated in Article 4 of the “Regulations for the Implementation of the Copyright Law of the People’s Republic of China”, and can be protected as movie-like works.

Copyright should belong to investors

The issue of copyright ownership of online games is the main focus of disputes in cases involving online game copyright disputes. There is a view that the copyright of continuous dynamic images generated by online games should belong to the players, and another view is that game developers should enjoy the copyright of continuous dynamic images of online games.

Different players operating online games, or the same player operating online games with different methods, will produce different continuous dynamic game screen results, which reflect the player’s personalized judgment and operation. Therefore, the player is considered to be the continuous dynamic game screen Creator.

However, in some judicial judgments, the above viewpoint has not been accepted. For example, in the “Miracle MU” case, the Shanghai Intellectual Property Court clearly pointed out in the second-instance judgment that the different choices made by different actions by players did not exceed the screen content preset by the game manufacturer, and were not created outside the game. The core elements including the image of the game role in the online game, the division of the two sides, the action skill special effects, the main story mission, the background scene picture, the supporting music and sound effects, etc., are all pre-designed by the game developer. There is no prior participation, nor can it be controlled through post-operations, and the space for play is limited.

“Game development is similar to film creation. The copyright ownership of game works can be borrowed from the regulations of film works, that is, the copyright of the game works as a whole belongs to investors.” said Lu Haijun, a professor at the University of International Business and Economics.

Zhang Ping, a professor at Peking University Law School, also believes that from the perspective of research and development, game copyright should belong to game developers and investors. At the same time, the participation of players has played a huge role in the promotion of the game’s market and the recovery of benefits. How to balance the interest relationship between the game anchor and the game developer as the original copyright owner is worthy of further discussion.

In order to promote the sustainable and healthy development of the online game industry, the white paper suggests that in addition to making it clear that online games as a whole are audiovisual works at the legislative level, from the administrative law enforcement level, regular publication and establishment of infringing games and corporate blacklists, smooth complaint channels, and game infringements can be considered. Take administrative measures in a timely manner; from the judicial level, corresponding trial guidelines should be issued to unify judicial judgment standards. At the same time, according to the characteristics of the online game industry, consideration may be given to reducing the cost of litigation rights protection and appropriately increasing the amount of compensation; from the enterprise level, as a major player in the industry Game developers and operators, game live broadcasts and short game video platforms should abide by business ethics, actively cooperate with supervision, and maintain a genuine online game business environment; from the industry association level, the industry association’s market governance functions should be fully utilized , Formulate relevant industry self-discipline standards, build communication and mediation channels for different entities, and play a positive role in the healthy development of the online game industry.

All media reporter Zhang Wei, Rule of Law Daily