On June 30, 2023, the "2023 Global Pan-entertainment Intellectual Property Summit (GPIPS)" hosted by IP Frontier New Media was successfully concluded at Ammanna Bonjour Shanghai with the theme of "Intellectual Property Building a New Entertainment Format", attracting more than 300 online and offline IP professionals in the pan-entertainment field.
At the conference on June 29, Shang Jiangang, associate professor of the School of Economic Law of Shanghai University of Political Science and Law and executive dean of the Silk Road Lawyer School of Shanghai University of Political Science and Law, shared his views on "Analysis of Copyright Infringement of Game Live Broadcasting" to the conference. IP Frontiers has compiled the content of Professor Shang's on-site keynote speech for reference and study by IP industry insiders.
To purchase the live review of the Global Pan-Entertainment IP Summit, please click the original link at the end of the article, or contact the staff Sharon: chanying_930
table of contents
1. The attributes of the work of the game running screen
2. Copyright attribution of game running screens
3. Whether game live streaming constitutes fair use
IV. Judicial Practice
1. Blizzard Entertainment Co., Ltd., Shanghai NetEase Network Technology Development Co., Ltd. and Shanghai Youyi Network Technology Co., Ltd. copyright ownership and infringement disputes
2. Copyright infringement dispute and unfair competition dispute between Guangzhou Douyu Network Technology Co., Ltd. and Shanghai Yaoyu Culture Media Co., Ltd
3. Copyright ownership and infringement dispute between Guangzhou Shuoxing Information Technology Co., Ltd. and Guangzhou Weidong Network Technology Co., Ltd. and Shanghai Zhuangyou Information Technology Co., Ltd. and Shanghai Harnet Information Technology Co., Ltd
4. Hangzhou NetEase Lei Huo Technology Co., Ltd. and defendant Guangzhou Jianyue Information Technology Co., Ltd. copyright infringement and unfair competition dispute case
Game live streaming refers to the fact that gamers display their own game play to the public through live broadcasting, which brings about conflicts of interest between game live streaming platforms and online game operators, and conflicts between game live streaming platforms, game players and game operators under subdivision. Shang Jiangang, professor of the School of Economic Law of Shanghai University of Political Science and Law and executive dean of Silk Road Lawyers' College, shared his views on the copyright infringement determination of game live broadcasts to this conference.
1. The attributes of the work of the game running screen
As far as the game running screen itself is concerned, there is a view that the game screen should be protected by "splitting", that is, the sound, text, images, art elements, etc. that constitute the work in the game material library should be protected (Cao Liping, 2015), but the "split method" has certain defects (Li Dechun, 2021), although the infringement determination method identified one by one is simple and direct on the surface, but in practice the workload is huge, the operation is difficult, and in practice, It is often difficult to determine how much compensation should be paid for infringement of individual game elements, which often results in a lower final amount of damages.
In addition, it should be noted that the combination of game elements itself also reflects the originality of the rights holder of the game operation screen, that is, the combination of individual game materials itself also reflects the unique selection and arrangement of the rights holder of the game operation screen, so it is not appropriate to split the game operation screen and protect its constituent elements, and the game running screen should be treated as an independent work for overall protection.
Some scholars believe that the game running screen is essentially a compilation of various art works with the attributes of works, and therefore belongs to compilation works (Cui Guobin, 2016). This view essentially confuses the relationship between compilation works and the categories of works provided for in Article 3 of the Copyright Law. A compilation work is a collection of works, data or other non-work information presented in a systematic manner, which, due to its own particularity, is a new type of work independent of the categories of works stipulated in Article 3 of the Copyright Law, and has the effect of "catching" protection for the types of works specified in Article 3. The text, music, graphics and other elements of online games are created by the game developers themselves, and when each element can be composed of works individually, it is claimed that they can be composed of compilation works as a whole, which obviously deviates from the purpose and proper meaning of compilation works (Wang Qian, 2016).
If the picture presented by the online game is relatively simple and lacks a storyline, such a less creative online game can be regarded as a video product (Zhu Jianjun, 2017).
If the overall picture of an online game is an audiovisual work or a tele-like work, it should be achieved by copyright protection of the overall picture of the online game (Wang Qian, 2016; Jiang Huasheng, 2021).
2. Copyright attribution of game running screens
In terms of the game operation screen formed by the player's game, some scholars believe that the developer should enjoy the copyright of the player's operation screen, the game operation screen has independent work attributes, it is the game developer rather than the game player who creates the game screen, and the copyright should belong to the game developer (Li Yang, 2017).
Players mainly pursue efficiency when operating, and the operation screen generated by this consideration of practicality is not original (Xu Anbi, 2017).
The player's operation cannot go beyond the scope of the programmer, and the player only realizes one of the various possibilities originally contained in the game through personalized operation, so no new work is created (Wang Qian, 2016).
No matter how skillful the player is, the game technique he operates cannot go beyond the scope set by the game developer, and the player is not creating a work (Wang Lina, 2016).
These views mainly hold that the player's game screen does not constitute an original expression and does not enjoy copyright, and from the current judicial practice, the mainstream view also believes that the player's game operation screen formed by the player game causes the player to enjoy the copyright of the game running screen.
Some scholars believe that players should enjoy the copyright of their operation screens, which believe that online game software is essentially just a creative tool, and the interactive operation of game players is a creative act, and players retrieve the required materials from the game resource library through the program to form the final dynamic picture, and the copyright of the game operation screen should be enjoyed by the player alone (Zhao Yinque and Yu Hui, 2017).
In the puzzle painting game, the player may strive to create beautiful works of art, three-dimensional sculptures in virtual space, architectural works, music, etc., to express certain thoughts and emotions, and the picture formed by the player's operation has creative characteristics, and its copyright should belong to the player. Players can make full use of the existing resources and materials in the game, and after careful consideration, they can visualize their own thoughts, and the subjective aspect of the game operation behavior is regarded as a kind of creation (Jiang Yike, 2019).
For specific types of online games, game developers provide players with a creative platform to express their personal characteristics, and players will create pictures with personality characteristics to express their interests and hobbies in the operation game, and the copyright of such works should belong to the gamers who created the works (Zhu Jianjun, 2017).
There are also scholars in the academic community who believe that the operation screen is a derivative work, and the player should obtain the consent of the developer before live broadcasting, in addition to pure competitive games, such as games with a high degree of free play, the player as a interpreter has made an original contribution to the game screen, and the most reasonable choice for the game operation screen is the derivative work (Cui Guobin, 2016).
Although the gamer's act of operating the game can be regarded as a creation, the creative act makes use of the game resources preset by the game program, so the player's operation screen can be regarded as the gamer's derivative work and enjoys copyright (Feng Xiaoqing, 2017).
If the player implants personalized content unrelated to the game itself in the game screen, these new personalized content combined with the game itself may reflect the player's original contribution and become a derivative work in the sense of copyright law. If the player modifies the database and the instruction program, the character settings and plot arrangements in the command program are original, and the above situations are based on the basic expression of the original work, which is closely related to the original plot characters of the game, and the dynamic picture of the game should belong to the interpretation of the original work (Jin Yongfeng, 2019).
In terms of the relationship between game live streaming and fair use, some people believe that game live streaming is to allow users to learn more game operation skills, not to show game screens, so that the purpose of live streaming the game has been transformed, which is in line with the conversion of use and constitutes fair use (Wang Qian, 2016).
Live streaming meets the "four-factor standard" set forth in Section 107 of the U.S. Copyright Act and constitutes fair use (Sherene, 2017).
However, there is a possibility that game rights holders may abuse their rights to restrict competition, and it is determined that live streaming constitutes fair use, which is conducive to promoting the development of online game live streaming industry (Kelvin Hiu Fai Kwok, 2015).
The objection constitutes fair use, mainly arguing that the game live broadcast does not meet the "four-factor standard" stipulated in Article 107 of the US Copyright Law, and is not fair use.
Game live streaming does not comply with any of the specific circumstances stipulated in Article 22 of China's current Copyright Law, and thus does not constitute fair use (Zhu Jianjun, 2017).
Since the game screen itself occupies a core position in the entire live broadcast screen, the live broadcast behavior does not conform to the conversion of use, and it is difficult to constitute fair use (Li Yang, 2017).
IV. Judicial Practice
1. Blizzard Entertainment Co., Ltd., Shanghai NetEase Network Technology Development Co., Ltd. and Shanghai Youyi Network Technology Co., Ltd. copyright ownership and infringement disputes
Hearthstone game poster
【Case No.】(2014) Huyi Zhongmin Wu (Zhi) Chu Zi No. 23
【Brief Introduction to the Case】
The plaintiff, Blizzard Entertainment, Inc., was established in 1994 and Hearthstone: Heroes of Warcraft ("Hearthstone") is an electronic card game launched by the plaintiff. The game is based on the World of Warcraft game, players can choose decks with different heroes in the Warcraft series as the theme for the battle game, and different hero themes also correspond to the nine classes in the World of Warcraft game.
In March 2013, the plaintiff Blizzard Entertainment Co. completed the game development design for Hearthstone and published the news and pictures about Hearthstone for the first time. The plaintiff, Shanghai NetEase Network Technology Development Co., Ltd., is a partner of the plaintiff Blizzard Entertainment Co., Ltd. in China, and the plaintiff Blizzard Entertainment Co., Ltd. has authorized the plaintiff Shanghai NetEase Network Technology Development Co., Ltd. to operate the plaintiff Blizzard Entertainment Co., Ltd.'s "Hearthstone" online game in the mainland of the People's Republic of China, and has authorized the plaintiff Shanghai NetEase Network Technology Development Co., Ltd. to exclusively enjoy the copyright rights related to the game, including the right of reproduction, the right of distribution, the right of exhibition and the right of information network transmission. The plaintiff, Shanghai NetEase Network Technology Development Co., Ltd., was authorized by the plaintiff Blizzard Entertainment Co., Ltd. to carry out extensive preliminary work for the operation of Hearthstone, and began issuing game test invitations to the Chinese public on October 23, 2013.
On October 25, 2013, the defendant Shanghai Youyi Network Technology Co., Ltd. presented to the public an online game called "The Legend of Wolong: The Legend of the Three Kingdoms" (hereinafter referred to as "The Legend of Wolong"). On October 30, 2013, the defendant announced on its company website that the game "Legend of the Sleeping Dragon" will be officially closed beta on November 5. As of November 5, the defendant had distributed activation codes for 30,000 Legend of the Dragon game test accounts.
Subsequently, the plaintiff found that the game "Wolong Legend" developed by the defendant had copied and plagiarized the plaintiff's "Hearthstone" game, which was embodied in five major aspects: "Hearthstone logo", game interface, card face design, card and deck combination, video and animation special effects, etc., infringing its copyright. Therefore, the plaintiff sued the court and demanded that the defendant stop the infringement and compensate for the damages.
【Case Analysis】
In this case, the court's main view was to identify different elements of the game as different works for copyright protection. On the question of whether the object of protection requested by the plaintiff was a work under the Copyright Law, the court held that each element of the game involved in the case needed to be examined separately, and as long as it was created independently by the author, had minimal aesthetic significance, and was not in the public domain, it should be regarded as satisfying the originality requirement of the work. Therefore, the court recognized the "Hearthstone logo", game interface, and card face design in this case as art works, video and animation special effects as electric-like works, and card and deck combinations as game manuals and text works.
On the question of whether the defendant infringed the plaintiff's copyright, the court held that for works with low originality, the standard for determining the same or substantially the same in infringement comparison should be raised accordingly. In this case, due to the low originality of the game interface, card face design and most of the video and animation special effects, and then removing a considerable amount of content that belongs to the category of ideas, and only comparing the similarities and differences of patterns, colors or continuous pictures, the allegedly infringing works did not constitute substantial similarity to the above works, and the defendant's acts did not infringe the copyright of the above works.
For the combination of cards and decks, because it is used as a game description, the choice of expression is extremely limited, so its overall originality is low, and the defendant's act of not completely plagiarizing does not infringe its copyright. Therefore, the court only found that the defendant Youyi's behavior infringed the copyright of the plaintiff's art work "Hearthstone Logo" and the work "Card Shop and Open Expansion Pack Animation" created by similar filmmaking methods, and should bear the corresponding civil liability such as stopping the infringement and compensating for losses according to law.
2. Copyright infringement dispute and unfair competition dispute between Guangzhou Douyu Network Technology Co., Ltd. and Shanghai Yaoyu Culture Media Co., Ltd
Dota 2 game poster
【Case No.】(2015) Pu Min San (Zhi) Chu Zi No. 191
【Brief Introduction to the Case】
Dota 2 (Dota 2) is a popular e-sports online game developed by Valve Corporation in the United States, which is operated by Perfect World (Beijing) Network Technology Co., Ltd. in Chinese mainland.
In 2014, YOYU signed a strategic cooperation agreement with a game operator to jointly operate the 2015 Dota 2 Asia Invitational. Through the agreement, Yaoyu Company obtained the exclusive video broadcasting rights of the event in the Chinese mainland, and was responsible for the execution and management of the event.
From January to February 2015, Yaoyu held the events involved, which were divided into qualifiers and finals. During the event, Yaoyu Company conducted a full, real-time video broadcast of the game through the Firecat TV website. At the same time, Yaoyu also granted Huya the exclusive right to live/rebroadcast (except Firecat TV) and charged a licensing fee. Without authorization, Douyu Company broadcast the event involved in the case in real time by intercepting the event screen through the client-side spectator mode with the host's comments.
Yaoyu Company believed that Douyu Company had violated the legitimate rights and interests of Yaoyu Company by intercepting the event screen and broadcasting the event in real time without authorization, so it sued the court, requesting that Douyu Company be ordered to immediately stop the infringement, compensate for economic losses and publicly eliminate the impact.
【Case Analysis】
In this case, the court found that Douyu's unauthorized live broadcast of game matches did not infringe copyright and constituted unfair competition. Since the competition itself involved in the event itself does not have a script or other prior design, the competition screen is a dynamic picture formed by multiple players participating in the competition in accordance with the rules of the game and through their own operations, which is an objective and intuitive expression of the competition situation in progress, the competition process is random and irreproducible, and the competition result is uncertain, so the competition screen is not a work stipulated by the Copyright Law.
After the appeal of the case, the court of second instance upheld the original judgment, holding that Douyu Company did not make any investment in the organization and operation of the event involved in the case, nor did it obtain permission for video broadcasting rights, but sat for free on the commercial results generated by the event that Yaoyu Company invested a lot of manpower, material resources and financial resources to organize and operate, and sought commercial interests and competitive advantages for itself, which was actually a "free rider" behavior, seizing the number of viewers originally belonging to Yaoyu Company, resulting in serious diversion of its website traffic and affecting its advertising revenue ability. Damage its business opportunities and competitive advantages, and weaken the value-added of its webcasting platform.
Therefore, Douyu's behavior violated the principle of good faith in the Anti-Unfair Competition Law, violated generally recognized business ethics, damaged the legitimate rights and interests of Yaoyu Company, undermined the order of market competition, and was obviously unjustified.
3. Copyright ownership and infringement dispute between Guangzhou Shuoxing Information Technology Co., Ltd. and Guangzhou Weidong Network Technology Co., Ltd. and Shanghai Zhuangyou Information Technology Co., Ltd. and Shanghai Harnet Information Technology Co., Ltd
Miracle MU game poster
【Case No.】(2016) Hu 73 Min Zhong No. 190
【Brief Introduction to the Case】
"Miracle MU" is an online game developed by South Korea's Netzen Co., Ltd., and the appellee (plaintiff) Shanghai Zhuangyou Information Technology Co., Ltd. is authorized to obtain the exclusive operation right and rights protection rights in China. In 2013, the appellant (original trial defendant) Guangzhou Shuoxing Information Technology Co., Ltd. developed the web game "Miracle Myth" without authorization and exclusively authorized the appellant (original trial defendant) Guangzhou Weidong Network Technology Co., Ltd. to operate it.
After comparison, in terms of map names and level restrictions, all map names before level 360 of "Miracle Myth" are basically the same as the corresponding map names of "Miracle MU"; In terms of the top view of the map and the scene map, the top view of the two is the same or similar in terms of color matching and displayed route map; In terms of characters and their skills, both games have three characters: swordsman, magician and archer, except for the magician's poison skill description, other skill descriptions are the same or basically the same.
In terms of weapons and equipment, comparing 29 weapons and 105 pieces of equipment between the two, the lines, colors and outlines are basically the same; In terms of monsters and NPCs, comparing the 47 monsters of the two games, the shape, color, and effect are basically the same, and 5 of the 6 NPC costumes provided by "Miracle Myth" are basically the same as the corresponding NPC shapes in "Miracle MU".
Zhuangyou believes that the overall picture of the "Miracle MU" game constitutes a "quasi-movie work", and the accused game infringes its copyright. The use of misleading content in the operation publicity of Weidong Company and Shuoxing Company together constituted unfair competition with false publicity, so Zhuangyou Company sued the court, requesting that Shuoxing Company and Weidong Company be ordered to stop infringing and unfair competition, compensate 10 million yuan for economic losses and reasonable expenses of 105,000 yuan, and publish an announcement to eliminate the impact.
【Case Analysis】
In this case, the court found that the entire picture of the game was recognized as an electric-like work for protection. On the question of whether the overall picture of the Game of Rights is original, the court of first instance held that the overall picture of the Game of Rights has a certain storyline, and the picture presented at the end of the screen after being operated by the gamer is original. The court of second instance held the same view, holding that the overall scene pattern design and the design of each component element of the overall screen of the right game are original, the prior use of individual characters and map names will not affect the originality of the overall picture of the game, and the overall picture of the game can be reproduced in tangible form, and the constituent elements of works that meet the law should be protected by the Copyright Law.
On the question of whether the overall picture of the rights game constitutes an electrically like work, the court of first instance held that the game screen produced by the player's operation consists of a series of pictures with or without accompanying sound and disseminated by the computer, and has a similar form of expression to a film work, which can be protected as an analogous work. The court of second instance held that the classification of works in the mainland Copyright Law is based on its form of expression, and the continuous activity screen in online games conforms to the expression form of similar electronic works, in which the different continuous activity pictures produced by different operations do not exceed the picture set by the game, and are not creations outside the game. In addition, the court held that the creation method of integrating various literary and artistic elements of online games is also similar to the creative method of filmmaking. Therefore, the court of second instance held the same view as the court of first instance, holding that the overall picture of the game of rights constitutes a quasi-electronic work.
On the question of whether copyright infringement was infringed, the court of first instance held that the two games constituted substantial similarities, and the defendant had the possibility of contact, and it also authorized Weidong Company to operate, so the court held that the two jointly infringed the copyright of Zhuangyou Company. The court of second instance recognized the judgment of the court of first instance, ordered the two appellants to bear civil liability for stopping the infringement, compensating for losses and eliminating the impact in accordance with the law, and upheld the original judgment.
4. Hangzhou NetEase Lei Huo Technology Co., Ltd. and defendant Guangzhou Jianyue Information Technology Co., Ltd. copyright infringement and unfair competition dispute case
Poster for the game "Soil no Hama"
【Case No.】(2021) Yue 0192 Minchu No. 7434
【Brief Introduction to the Case】
"The Coast of the Land" is a fully free real-time sand table strategy mobile game independently developed and operated by the plaintiff Hangzhou NetEase Leihuo Technology Co., Ltd. (hereinafter referred to as "NetEase Leihuo Company"), while "Three Kingdoms History: Strategic Edition" is a sandbox strategy mobile game produced by Guangzhou Jianyue Information Technology Co., Ltd.
In May 2021, the plaintiff NetEase Lei Huo Company sued the defendant Jian Yue Company in the Guangzhou Internet Court, arguing that the defendant Jian Yue's "Three Battles" game copied a large number of game content and game rules of the plaintiff's "Lead the Soil" game, infringed the plaintiff's copyright, and demanded that the defendant stop infringing on the plaintiff's right of adaptation and information network dissemination, and stop the act of unfair competition.
Related Reading:
Huang Wushuang, Qiu Siyu | "Video game rules" should not be recognized as a work protected by copyright law
Xiong Wencong | Why should original rules of the game be protected?
Qu Wenjing | Renegotiate the scope of control of the right of adaptation
Jiang Ge | Is the court obliged to circumvent the rules of the game for the infringer?
【Case Analysis】
In this case, the court ultimately found that the game as a whole was "other intellectual achievements that meet the characteristics of the work". In terms of whether the game constitutes a work and what type of work it constitutes, the court held that the game as an organic whole belongs to intellectual achievements that are original and can be expressed in a certain form in the field of literature and art, meet the constitutive requirements of the work, and belong to the work protected by the Copyright Law.
The court also held that video games, as originality embodied in the specific design, selection and arrangement of game rules, game materials and game programs, are intellectual achievements that can be expressed in a certain form in the field of literature and art, have their own unique creative methods, forms of expression and means of dissemination, are essentially different from audiovisual works, and are essentially different from other types of statutory works, and should be recognized as "other intellectual achievements that conform to the characteristics of the work". It is worth noting that the verdict has already met with fierce criticism from scholars.
To sum up, on the issue of whether online game screens constitute works, in previous cases, courts chose to identify different elements in games as different works for copyright protection, holding that as long as each element in the game screen is independently created by the author, has minimal aesthetic significance, and is not in the public domain, it can be regarded as original, and then divide different types of works according to the specific characteristics of different elements.
However, in recent years, courts have more regarded the online game screen as a whole, and determined by judging whether the overall picture meets the constituent elements of the work, because it has a similar form of expression to the film work, so it mostly identifies it as an electronic work for protection. It should be noted that in the latest case, the court found that the game as a whole is "other intellectual achievements that meet the characteristics of the work", which broadens the thinking of the court when deciding similar cases in the future.
Author: Shang Jiangang
Edited by Sharon