preface
Since June 2000 Chinese mainland the first massively multiplayer online RPG online game "King of Kings" was officially released as the beginning, through more than 20 years of rapid development, online games have completed the transfer and transformation of computer terminals represented by "Stone Age", "Legend 2", "Fantasy Westward Journey" and "World of Warcraft" to mobile terminals represented by "Genshin", "Glory of Kings" and "Peace Elite". At the same time, the development and operation mode of online games has also completed the "gorgeous turnaround" from "overseas online game introduction agents" to "domestic enterprises independently research and develop overseas to generate income".
According to the summary of the 2022 China game industry data recently released by the Game Working Committee of the China Phonological Association, the actual sales revenue of China's game market in 2022 will be 265.884 billion yuan, and the scale of game users will reach 664 million, while the game market share in Guangdong Province accounts for 79.6% of the national market share. It greatly damages the competitive environment of the game market and the creative enthusiasm of game developers. Therefore, the author wrote this article to roughly summarize and describe the basis for determining online game infringement cases and the choice of rights protection paths, in order to standardize the development environment of the game market and make a contribution to promoting the high-quality development of the online game market.
1. Definitions of online games, types of online games, and infringement of online games
1. Definition of online games
According to the "Interim Measures for the Administration of Online Games" promulgated by the former Ministry of Culture, online games refer to game products and services composed of software programs and information data and provided through information networks such as the Internet and mobile communication networks. Online games are essentially a kind of computer software program, which is the sum of the game engine and game resource library.
2. Online game genre classification
Online games are classified according to the player's perspective and gameplay, and are roughly divided into the following types: RPG role-playing games, MOBA multiplayer team up against competitive games, ACT action-adventure games, RTS real-time strategy games, SLG strategy games, FPS/TPS first/third person shooter games, PZL puzzle games, CAG card games, etc. The differences in the above gameplay determine different classifications and different game copyright protection models.
3. The main types of infringement of online games
(1) "skinning" plagiarism
"Skinning" plagiarism refers to a type of game that imitates or completely copies the actual gameplay, rules, plot settings, etc. of the original game, and only replaces the original game art graphics, text expression, music, etc. The imitation objects of "skinning games" are mostly games with a certain popularity or attention, so plagiarists can take advantage of the popularity and similar gameplay of the original game to obtain benefits.
(2) Overall plagiarism
The overall plagiarism as the name suggests is worse than the nature of "skinning" plagiarism, that is, the core gameplay rules of the original game and the characters, art graphics, text expression, presentation methods, layout perception, etc. are substantially copied, and some plagiarists will make some changes to the name of the game, but will deliberately climb the plagiarized game to attract players when publicizing, so that players cannot clearly distinguish the difference between the two.
(3) Plagiarism of the rules of the game
The game is essentially a collection of game rules, the content that guides and requires us to play the game is the game rules, the rules are the core of the game, if there are no rules, there will be no essence of the game. When the game designer's presentation of the gameplay enables the player to have a specific experience of perceiving the source of the work, it can be considered that the designer's presentation method is a specific expression of the rules of the game, such as task design, level setting, specific values of the game, etc., if this specific expression has originality and individual distinctive characteristics, can be clearly distinguished from other games, it should be protected by copyright, in the same way, plagiarism game rules should also be subject to corresponding sanctions.
(4) Plagiarism of art, graphics and text
Elements such as art, graphics and text, according to the relevant theories of the Copyright Law, shall be protected by the Copyright Law if they condense the original expression of the creator's independent intelligence and have artistic aesthetic value, and the characters, scene maps, skill special effects and descriptions, plots and other elements in the game are the same, even if the plagiarist only copies the above single element, it also constitutes copyright infringement.
II. Mainland judicial practice adjudication rules for online game infringement dispute cases
As a new thing and an emerging industry, the adjudication rules for the above-mentioned online game infringement in mainland judicial practice are also constantly advancing with the times and iteratively developing. Regarding the application of law when online games are infringed, judicial practice in the mainland generally adheres to the principle of "intellectual property copyright law is the mainstay, and the anti-unfair competition law is a limited supplement".
In the scope of copyright protection, the protection model of "contact + substantial similarity" is generally adopted. That is, by first determining whether the defendant has reasonable grounds to contact the plaintiff's work, and then comparing the allegedly infringing work with the infringing work, so as to determine whether the similar parts of the two games constitute substantial similarity. The methods for determining whether a work constitutes substantial similarity are divided into: the overall sensory method and the abstract separation method.
In the scope of protection under the Anti-Unfair Competition Law, the focus of the review is on whether the allegedly infringing work violates fair and orderly competition in the market and generally accepted business ethics.
The above are the principle provisions of the adjudication rules, and the author summarizes the above adjudication principles into the following three practical views based on classic cases of online game infringement disputes:
(1) Sub-protection from a single element or the overall protection of electrical (audiovisual works) requires a case-by-case analysis
Article 6 of the Guidelines for the Adjudication of Civil Dispute Cases Concerning Intellectual Property Rights in Online Games (for Trial Implementation) promulgated by the Higher People's Court of Guangdong Province in April 2020 stipulates that "the plaintiff may claim that others have infringed the rights and interests of others in the overall content of the online game, and may also claim that others have infringed the relevant rights and interests of specific parts or elements of the online game." Where the overall protection of online games is sufficient to stop infringing acts, specific parts or game elements of online games may no longer be dealt with separately. ”
In a separate element protection case, such as "Rateland no Hama" v. "Land-nohama" simulator case, the plaintiff chose to claim protection and unfair competition against 472 martial arts battle art works and 154 martial arts art works in the infringing works according to the characteristics of its own card game, and finally the court upheld the plaintiff's claim for copyright protection of the art and written works.
In the case of the overall protection of audiovisual works, such as "Miracle MU" v. "Miracle Myth", "Miracle MU", as a 2.5D game, has the characteristics of real-time real-time screen operation feedback, and the court held that the online game screen is original and can be reproduced in tangible form, and should be protected by the mainland copyright law. The creative process and expression form of online games are similar to film works, and combined with the relevant provisions of the mainland copyright law and the Bernier Convention for the Protection of Literary and Artistic Works, the entire picture of the game involved in the case can be protected as a "cinema-like work". The game screen is composed of continuous pictures presented by game characters, monsters, etc. continuously unfolding a series of plots in the game scene, and after comparing the plot, characters, scenes and other related materials in the game, it was finally determined that the two games constituted substantial similarity, which supported the plaintiff's claim. This case created a precedent for the overall copyright protection of online games according to the class of electronic (audiovisual works).
(2) The rules of the game can be protected from not protecting to forming a unique intellectual creation on the basis of detailed description and full expression
In Hearthstone v. Wolong, the court considered Hearthstone's card values, card playing order, professional skills, etc. to be categories in the field of ideas based on the principle that copyright only protects the expression of ideas. In the case of "Taiji Panda" v. "Huaqian Bones" game, the court held that "Taiji Panda" is a work created by a method similar to filming as a whole, and the specific presentation of gameplay rules in the overall picture of the game constitutes the object protected by the Copyright Law, and the game "Huaqian Bones" infringes the right of adaptation enjoyed by the copyright owner, thus supporting the plaintiff's claim. This case clarifies for the first time that the specific presentation of gameplay rules constitutes the object of protection under the Copyright Law, and clarifies the infringement comparison method for comparing the expression content and expression form of the gameplay rules, and holds that the expression content and expression form constitute substantial similarity and constitute infringement.
The author believes that this is the progress of judicial practice, the rules of the game as the core of the game, as the soul of the game, often condense a lot of the creator's efforts and efforts, if only the rules of the game belong to the idea and are not protected, it is not conducive to the innovation and creation of the entire game market. The author believes that when deciding whether the rules of the game constitute the constituent elements of copyright protection, it is first necessary to analyze and judge whether the rules of the game are original, and if they have a basis for originality, continue to separate ideas and expressions according to the dichotomy of expression of ideas, and protect the specific expressions that constitute gameplay.
(3) If the application of the overall protection of electricity-like electricity excessively expands the scope of copyright protection, and the work sued obviously constitutes confusion, the Anti-Unfair Competition Law may be applied to punish it without limiting the scope of its copyright rights
In the case of "Minecraft" v. "Mini World" recently pronounced by the Guangdong Provincial High Court, the court finally found that the two games, as sandbox types, were audiovisual works, but the plaintiff's claim was the overall protection determination, through the comparison of the overall picture, the defendant's game "Mini World" and the rights holder's game "Minecraft" did not constitute substantial similarity, so it did not constitute copyright infringement of the overall picture of the work, but still found that the defendant's imitation and plagiarism behavior violated the principle of good faith and business ethics, and disrupted the order of competition in the game market. It constitutes an act of unfair competition, and is awarded the maximum amount of compensation of 50 million yuan in online game disputes.
The typical significance of this case is that it clarifies the attributes of audiovisual works of real-time dynamic online games, and then points out the direction of the choice of rights protection paths in this type of online game infringement case. At the same time, the court also made a more detailed distinction, and only the "overall picture of the game" can be recognized as an electronic (audiovisual) work, "which does not mean that non-graphic content can also obtain copyright protection without distinction". That is, the rules of gameplay are different from the audiovisual pictures of games, and if the picture expression and non-picture content are simply and generally combined, the original expression of different nature is replaced in the same work, which exceeds the scope of protection of the copyright of the game screen.
At the same time, this case also reaffirms that if the plagiarism of a large number of single elements of the accused work obviously constitutes confusion, it can be punished by applying the Anti-Unfair Competition Law.
The author concludes that if the subject of an online game case has chosen to carry out overall protection when protecting its rights, that is, the overall screen of the game that chooses to be protected, it can no longer claim the internal core elements such as the expression of rules in the overall screen, which also cools down the overall protection heat of the currently popular online game works.
III. The path of litigation and rights protection of game manufacturers when they suffer from game infringement
From the above-mentioned judicial practice adjudication rules and the summary of typical cases, it can be seen that although the mainstream protection method for game infringement cases is to advocate overall protection, not all online game infringement cases can be protected as a whole in accordance with the electronic or audiovisual works of the Copyright Law.
First of all, when a game manufacturer discovers an infringing work, it must determine whether the two works constitute a substantial similarity between the overall picture of the game and the senses, and if so, it can be protected as a whole according to the audiovisual electronic work. For example, if the two games also use a sword with the same unique design model, but if one game is held by Li Moumou for turn-based attacks, and the other game is held by Wa Moumou for instant feedback attack on monsters, then obviously it cannot be inferred that the two games constitute the substantial similarity of the overall game screen because of the substantial similarity of the swords, and if this is the determination, it is obviously improper to expand the scope of protection.
Secondly, if the overall picture and overall perception of the game do not constitute substantial similarity, it is necessary to split and compare the two works one by one, and before the comparison, the public domain and the expression of ideas and axioms should be eliminated, and the remaining elements such as characters, plots, martial arts skills, actions, gameplay rules, etc. should be compared one by one, if the corresponding elements are substantially similar, the court can request protection according to the form of the copyright work represented by the elements and then require the plagiarized elements in the plagiarized works to be replaced. Essentially disassemble the game content of the plagiarized work.
Finally, while proposing the copyright protection of individual elements, it is also possible to plagiarize the elements of the plagiarized work so that ordinary players are completely unable to distinguish the difference between the two games, so that confusion arises, which constitutes an act of unfair competition under Article 6 of the Anti-Unfair Competition Law, and the plagiarized author can also be required to compensate for the loss.
In summary, in online game infringement dispute cases, under the premise of lacking a general definition of the terms of the work and a clear protection model of the Copyright Law, there is no single optimal solution to online game infringement disputes, and it is necessary to decide the litigation strategy and rights protection path according to the specific actual circumstances of each case, so as to achieve the comprehensive purpose of cracking down on infringing authors, protecting their own rights and interests, and making up for their own losses.
About the author
Mr. Zhang Jie is a full-time lawyer at Guangdong Guangxin Junda Law Firm
Focus areas: civil and commercial difficult and complex litigation and dispute resolution, construction engineering, real estate, Internet industry (live broadcast and games)
Mr. Zhang Jie graduated from Shaanxi Normal University with a major in law, and was formally admitted as a lawyer in 2015, and has handled more than 100 civil litigation cases independently or sponsored since his practice, with rich experience in civil litigation cases, focusing on construction and real estate and complex contract disputes in civil and commercial matters, and the Internet industry (live broadcast and games). He has served as legal counsel for a number of state-owned enterprises and companies, providing enterprises with a full range of corporate legal services such as contract review, legal consultation, and issuance of lawyers' opinions.