In the Spring Festival of 2022, a large number of players choose to play games online. With the efficient marketing effects produced by Douyin and Kuaishou live broadcasting, game live broadcasting has also become the hottest online game in the Spring Festival file.
In the face of a wide variety of game titles, the short video industry enables gamers to use this technology to disseminate insights and share skills, while other members of the public can use fragmented time to quickly understand game content and learn game experience. With massive attention, huge commercial value will be generated, and disputes between the main body of the industrial chain will occur. Ban Ke, a special expert of Internet Law Review and a lawyer at Zhuo Wei Law Firm, took the litigation of Tencent and Douyin as an example to analyze the analysis mode and possibility of "fair use" in the copyright of game short videos from the perspective of game category and industrial ecology.
In recent years, the game industry has developed rapidly, according to the "2021 China Game Industry Report" released by the Game Working Committee of the China Music and Digital Association, in 2021, the actual sales revenue of China's game market was 296.513 billion yuan, an increase of 17.826 billion yuan over 2020.
With the rise of short video, the game industry and the short video industry have begun to blend. A large number of network users such as live broadcasting and video of game masters have been generated, and copyright infringement disputes have been triggered.
In August 2021, the Judgment Document Network published a judgment involving the copyright of short video games.
Plaintiff: Tencent
Defendant: Microcast Horizon Company, the operator of the Douyin platform
background:
The "Glory of Kings" game involved in the case is a multiplayer online competitive game (MOBA game) developed by Tencent. Douyin users recorded a series of videos involving the gameplay and interpretation of "Glory of Kings" and uploaded them to the Douyin platform.
Cause of action:
Tencent believes that the douyin platform operators, in order to attract traffic, have infringed tencent's copyright by allowing and helping users to disseminate infringing short videos in order to attract traffic knowing that the short video of the "Glory of the King" game on the platform is unauthorized, and refusing to delete it after receiving the infringement notice letter.
The Court's Judgment:
In the case, the Shenzhen Intermediate People's Court found in the first instance that the continuous dynamic screen of the "Glory of the King" game constituted a similar electrical work, that the douyin user's failure to obtain the authorization of Tencent to disseminate the short video of "Glory of the King" infringed tencent's copyright, and that douyin's failure to delete the short video in a timely manner also constituted an infringement of tencent's copyright.
This article takes the above case as an example to analyze the analysis mode and the possibility of "fair use" in the copyright issue of game short videos.
"Fair use" was the focus of the case
The defendant, Microcast Vision, argued that the game video constituted a new work by adding commentary and other content to the game work, changed the original function of the game work, and constituted "conversion use", so as not to have a substitute for the game work, and the game screen quoted was only a small part of the overall copyright of the game, constituting a fair use behavior appropriately quoted in the introduction and evaluation.
In this regard, the Shenzhen Intermediate People's Court held that:
First, the number of short videos using the game screen involved in the case on the Douyin platform is as high as 900, although the single video is short, but more than 900 clips show almost the entire content of the "Glory of the King" game, beyond the scope of appropriate citations.
Second, the relevant short video makes the game screen of "Glory of the King" out of the control of the right holder, so that the public can obtain the game screen without downloading the game, affecting The Tencent Company's exercise of copyright in the game screen, harming the interests of Tencent Company, and does not constitute fair use.
However, from the perspective of the industry, game short videos belong to the emerging market formed by the development of network communication technology based on new works utilization methods, not only the derivative market of game works, but also the promotion of the game market itself, we should look at this industry ecology from the perspective of development; in addition, from a legal point of view, in game short videos, not all creators are simply reproducing and reproducing the game's picture to the audience and implement infringement, especially for the video of competitive games such as "Glory of the King".
So in addition to copyright licensing negotiations, is it possible for creators and platforms to break through game developers' control of the game short video market with fair use?
The author believes that each element of fair use has a large space for interpretation and uncertainty, and in specific judicial practice, it is necessary to base on the specific content of the game and video in the individual case, combined with the market demand of the public and the characteristics of the game industry, and other relevant elements, balance the interests of the right holder and the public interest, and draw a conclusion on whether fair use can be applied.
This article will try to analyze this in accordance with the mainland copyright fair use system and combined with the facts of this case.
Mainland fair use system and applicable rules
The fair use system is a restriction on the rights of copyright, which is a system in which the protected work can be used fairly without the permission of the copyright owner under certain circumstances, without the need to pay remuneration to the copyright owner.
The original intention of the system was to balance the contradiction between the protection of the author's monopolistic personal interests and the public's free approach to the preservation of the public interest of the work.
Article 24 of the new Copyright Law, which came into effect in June 2021, stipulates the rules for determining fair use through the "three-step test method" -
In the first step, there should be statutory circumstances applicable to the fair use system;
Second, the use of the right work in accordance with the statutory circumstances shall not affect the normal use of the right work;
In the third step, the use that meets the statutory circumstances must reasonably damage the legitimate rights and interests of the copyright owner.
Of the twelve specific circumstances provided for in paragraph 1 of Article 24 of the Copyright Law, as well as one bottom-up situation, only item (2) is an appropriate quotation for the introduction of comments or (3) is related to the use of the work involved in the short video of the game. After confirming the existence of related statutory circumstances, it is necessary to further analyze whether the use of the work matches the relevant circumstances, and whether it affects the normal use of the work and the abnormal damage to the interests of the author.
When applying the fair use system, the mainland often introduces the four-factor criterion for judging the principle of fair use in US copyright law for comprehensive evaluation. In fact, the Supreme People's Court in 2011 authorized the inclusion of the four elements as specific measures of the applicability of the fair use system of mainland copyright law1.
"Properly apply the limitations and exceptions to copyright to correctly determine the legality of the alleged infringement,......。 In the special circumstances where it is really necessary to promote technological innovation and commercial development, considering the nature and purpose of the use of the work, the nature of the work to be used, the quantity and quality of the part to be used, the impact of the use on the potential market or value of the work, etc., if the use behavior does not conflict with the normal use of the work, nor does it unreasonably harm the legitimate interests of the author, it may be regarded as fair use. ......”
Article 8 of the Opinions on Several Issues Concerning Giving Full Play to the Role of Intellectual Property Adjudication in Promoting the Great Development and Prosperity of Socialist Culture and Promoting the Independent and Coordinated Development of the Economy
Among the four elements, the principle of "transformative use" is the main factor considered when judging the "purpose or nature of use" of the first element, while the fourth element, "the impact of use on the value of the work or the potential market", is the most important measure of fair use2, which is also related to the determination of the normal use of the work and the two steps of harming the interests of the author in the three-step method.
Game short videos are subject to fair use considerations
1. Provisions on Conversion
The so-called "transformative use"3 means that the use of the original work is not simply to reproduce the literary and artistic value of the original work itself or to achieve its inherent function or purpose, but to change its original function or purpose by adding new aesthetic content, new perspectives, new ideas or other means, so that the original work has a new value, function or nature in the process of being used, thereby changing its original function or purpose.
This rule has been applied in mainland judicial practice, for example, in the copyright dispute case 4 of "Huluwa" and "Black Cat Sheriff", the court held that the defendant's use of "Huluwa" and "Black Cat Sheriff" in the propaganda poster of the film was to illustrate the age characteristics of the protagonist of the film involved in the case, which was no longer simply to show the artistic beauty of the work involved in the case, but produced new values and meanings to transform its original artistic value function.
The content of game short videos is mainly game skill experience sharing, live recording, trial experience, etc., and there are differences in the identification of conversional use of short videos produced based on different types of games. Therefore, it needs to be analyzed in conjunction with the type of game. According to the degree of freedom and openness, the game can be divided into two directions of linear game and open game, and an interval is drawn at the endpoint of the two directions, and different games can be classified into different positions in this interval.
Linear games refer to games that have a fixed script and players experience around the game's preset plot line, such as Resident Evil and Paladin Legend. This kind of game has a low degree of freedom, its focus is to let the player experience the plot and story of the game, the player's behavior is difficult to exceed the framework of the game preset, so the viewing experience of the short video of this type of game is very similar to the actual play experience, and the substitution is high.
Open-ended games refer to games in which players can freely create gameplay, such as Minecraft, Siege, etc. This type of game provides only a few elements and platforms, and the player makes the game elements, creates the rules, and sets the gameplay. High degree of freedom of open game is to rely on the game's gameplay to attract players, the player's own conception and play is easy to form a work, such games of short videos show the player's own unique gameplay and ideas, rather than the game work ontology content, basically not substitution.
In this case, the court held that the content presented in the game video was an image formed by the player using the existing elements of the game when playing, had no creative intent and was still within the original framework of the game, was part of the content of the game's preset, and the player did not enjoy any copyright, and thus did not have a basis for talking about conversional use.
However, the "Glory of the King" involved in this case is a competitive game with a high degree of freedom, and for these continuous pictures presented by the game video, the author believes that it cannot be generally determined that it belongs to the content preset by the game developer and there is no basis for applicable conversion use.
First of all, the game developer only provides the game engine and game library, and how to use the engine to allocate resources to present the game screen content in the video depends entirely on the player's operation skills and tactics. Although the video creator did not create new game screens or content elements in the production process of the game video, because of the difference in the techniques and strategies of the video creators, the various artistic elements of the game were recombined, and it was completely possible to form a continuous picture with originality. This is similar to the process by which the director (the player) arranges for the actor (hero) to shoot in a specific scene (map area).
In principle, operational skills and tactics belong to the category of ideas, and indeed cannot be protected by the Copyright Law, so there is no copyright infringement problem for others to borrow the skills and tactics of video creators to play games; but others record a completely identical game video according to the video creator's thinking, there is a risk of copyright infringement.
- Author's Note
Secondly, based on the game design method, in addition to the game characters, scene settings, inherent plots, engines, etc., it is impossible for game developers to preset all the elements in the game when creating, which is why competitive games will frequently adjust the balance according to the feedback of players during the game. If it is assumed that a game developer merely providing a game engine and a library of game assets is equivalent to obtaining various permutations and combinations of game elements, what should be explained for the creative buildings built by players in high-freedom games such as Minecraft, which are obviously able to form the work independently? This is as irrational as arguing that the people who invented the Latin alphabet and Latin grammar could monopolize the creation of the entire Latin culture.
It can be seen that in competitive games with a high degree of freedom such as "Glory of the King", the game screen formed by the player's operation can form a content with a degree of originality; the viewer is concerned about the experience and skill sharing of the video creator behind the video screen, which condenses the creation and efforts of the video creator, not the content carried by the game work itself; the game characters, maps, NPCs, The artistic value function of both elements and other game works such as screens has also been transformed, and they are only a medium for conveying information, and they are not concerned by the viewer because of their art or beauty. Therefore, the short video of such competitive games has the basis for determining that it constitutes a conversional use.
2. Influence on the use of game works and the rights of authors
In addition to protecting the interests of right holders, copyright law should also encourage innovation in the dissemination of works. When game developers do not suffer losses due to the dissemination of game short videos, if game developers are allowed to exclude competition excessively, it is easy to hinder the dissemination and free use of works, resulting in monopolies.
Therefore, in the process of judging the fair use of short videos, in addition to considering whether the use of the video creator constitutes a conversional use, it is also necessary to comprehensively consider market factors to evaluate the impact of fair use on the use of the work and the interests of the author.
In this case, the court held that "the video of the game "Glory of kings" has freed the picture of the game from the control of the right holder, and the public can play the game without downloading the game, which affects the interests of the copyright owner". In the author's view, the court confused the distinction between competitive games and purely linear games in this determination process.
The court's argument in this case applies only to the experience of linear games, and the game video is equivalent to a copy of the game work, which will affect the viewer's experience of the novelty of the content of the work, and then erode the interests of the game developer.
However, for competitive games such as "Glory of kings", players pay attention to personally experiencing the fun of competitive confrontation, as well as the sense of pleasure after winning, watching short videos can not replace the process of players personally experiencing the pleasure on stage. Therefore, short videos of competitive games will not erode the interests of game developers, but will promote and stimulate viewers to experience the game, increase the benefits of game developers based on works, and will not adversely affect the use of game works and the interests of game developers.
3. Determination of appropriate citations
In current judicial practice, the court of fair use is more concerned about the nature of the act of citation as to whether it constitutes an appropriate citation. To comprehensively assess whether the number and proportion of citations meet the criteria for appropriate citations, it is necessary to combine the reasonable needs of the introduction, comment or explanation, as well as the content and purpose of the citation, and consider whether there is a situation in which the works of others are used instead of one's own creation.
In this case, the court's primary factor in finding that the Glory of Kings gameplay video did not constitute fair use was based on the fact that the video creator used a large number of game footage clips, and held that these clips were combined to present the core content of "Glory of Kings".
The court's above discussion presupposes two premises: the picture presented in the video is part of the content of the game "Glory of Kings"; and the creator quotes the game screen presented in the video.
The author believes that there is a misunderstanding in the court's premise on the scope of the game work and the identification of the object of reference. As mentioned earlier, the screen presented in the game video is the original content formed by the player using various elements of the art work, and is not the preset content of the game work; the object referenced by the video creator is the art work element in the game, not the game screen.
For the Glory of Kings gameplay video, the objects referenced by the creators in the video only involve art works that set elements such as game characters and maps. The actual references are only a limited number of set element content. For the "Glory of Kings" game video, these contents are indispensable when quoting, and the quotation behavior does not exist to quote other people's works instead of their own creations. Based on the synthesis of the above factors, as long as the setting elements quoted do not involve the substantive content of the game work, do not affect the use of the game work, and do not harm the rights of developers, there is still room for fair use to apply appropriate references.
epilogue
The legislative purpose of the Mainland Copyright Law is to protect the interests of copyright owners while promoting the development of science and technology culture and the dissemination of works.
It is true that game works are the source of game videos, and the good ideas of game works themselves also contribute to the popularity of game videos. However, the rapid development of the game video market is inseparable from the creative creation of video creators, inseparable from the promotion and dissemination support provided by the platform side, and the development of the game video market can also bring new traffic and revenue to the game market, if the creative contribution of players is ignored, game developers are allowed to control all known unknown game screens as copyright owners, and there is also a suspicion of monopoly.
In short, in the face of the emergence of emerging formats, we should encourage full market competition, take into account the interests of all parties, should not be partial, properly understand and flexibly apply the relevant institutional rules of the Copyright Law, and provide institutional support for the industrial vitality of emerging formats.
footnote:
1. Interpretation of the Copyright Law's Model of Rights Restriction, Wang Qian, China Copyright Magazine
2. The Nature of Copyright: The Law Protecting User Rights, Lyman Ray Patterson, Stanley M. W. Lindbergh, Law Press, pp. 155-161
3.Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)
4. (2015) Huzhimin Zhong Zi No. 730 Second Instance Civil Judgment
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