The topic should be self-explanatory. Recently, I read Wang Qian's "The Negation of Copyright Protection of Electronic Game Rules", although they are all talking about the legal theory of copyright, but I believe that the views held by some comrades, including me, are very different from the views of this article, which may not only stay at the theoretical level, but have also affected the level of judicial adjudication.
It is recalled that at the beginning of its establishment, the Beijing Intellectual Property Court introduced "dissenting opinions" or "minority opinions" into individual judgments, which showed the new atmosphere of judicial reform in those years[1], which helped to present and encourage the critical thinking of legal professionals. This article is a "different opinion" on the viewpoint in the "Denial of Copyright Protection of Video Game Rules".
01From the perspective of case research, based on the "dichotomy between thought and expression", based on a large number of cases, we support the original rules of the game to constitute expression and are protected by copyright
(1) The "dichotomy between thought and expression" is an eternal but unavoidable problem in the history of copyright law, and perhaps the earliest case involving this issue can be traced back to the famous Baker v. Selden, the U.S. Supreme Court held that the scope of copyright protection for a plaintiff's book on the method of keeping the book does not extend to the method of keeping the book itself (see "copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon."). the plan set forth in such book.” Id. at 104.）。 Since then, the most controversial case has been Lotus Development Corp. v. Borland Intern., Inc. 49 F.3d 807 (1st Cir. 1995),[2] in which the plaintiff's Lotus 1–2–3 software contained 469 commands, which were combined into 50 menus and submenus to form the menu structure of the Lotus 1–2–3 software. Defendant Borland Intern., Inc. did not copy the code of Lotus 1–2–3, the software copyrighted by Lotus Development Corp, but copied the menu structure of Lotus 1–2–3 software, so that users who were familiar with the menu structure of the plaintiff's software could easily use the defendant's software, because the menu structure of the two software was similar, so that users no longer needed to learn to use a new menu structure.
（2）在Lotus案中，美国第一巡回法院表达了这样的观点：即使一个菜单结构的组合能够体现创作者的选择或者独特性，或者说，为了实现一个功能，客观上会有多种选择的菜单结构，而创作者只是取舍了其中的一种方式，即使如此，该菜单结构仍构成“操作方法”（Method of Operation），不构成著作权保护的客体。 (见 “Accepting the district court’s finding that the Lotus developers made some expressive choices in choosing and arranging the Lotus command terms, we nonetheless hold that that expression is not copyrightable because it is part of Lotus 1–2–3’s method of operation. ” Id. at 816；另见， “The Lotus court concluded that the question whether a work is excluded from protection under section 102(b) logically precedes consideration of whether the individual components of the work are “expressive.” 见Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (1997) )
(3) I can probably safely assume that the basic point of view in the Negation of Copyright Protection of Video Game Rules is close to, or can be traced back to, the point in the Lotus case mentioned above (see paragraph (2) above), for example, in the Negation of Copyright Protection of Video Game Rules, the author argues that "content that is not an expression and cannot be protected by copyright law cannot be transformed into a protected expression because of the originality of the way it is presented" , which appears to be very close to the point taken in the Lotus case (see paragraph (2) above).
（4）然而，可惜的是，在美国，大量的后续的案例并没有遵循Lotus案，因此，Lotus案看起来不算是一个“好”的先例。 实际上，即使是在Lotus案中，BOUDIN法官在“concurring”中，也指出该案的分析方式并非完美，另外一种可行的选择是承认受著作权保护而从合理使用的角度去考虑（见，“Thus, for me the question is not whether Borland should prevail but on what basis. Various avenues might be traveled, but the main choices are between holding that the menu is not protectable by copyright and devising a new doctrine that Borland’s use is privileged. No solution is perfect and no intermediate appellate court can make the final choice.” Id.）
在Lotus案后的Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (1997)案中，第十巡回法院“婉拒”了遵循Lotus案，对于描述操作方法的内容，坚持以“抽象-过滤-比较”的方法[3]，将思想和表达进行区分，也就是说，即使某个内容系描述“操作方法”，但如果具备了独创性的表达，即使属于“操作方法”，其仍然受到著作权保护（见“We conclude that although an element of a work may be characterized as a method of operation, that element may nevertheless contain expression that is eligible for copyright protection. Section 102(b) does not extinguish the protection accorded a particular expression of an idea merely because that expression is embodied in a method of operation at a higher level of abstraction. Rather, sections 102(a) & (b) interact to secure ideas for public domain and to set apart an author’s particular expression for further scrutiny to ensure that copyright protection will “promote the ... useful Arts.” U.S. Const. art. I, § 8, cl. 8. Our abstraction-filtration-comparison approach is directed to achieving this balance. Thus, we decline to adopt the Lotus court’s approach to section 102(b), and continue to adhere to our abstraction-filtration-comparison approach.” Id. ）
此后的ORACLE v. Google .750 F.3d 1339 (2014)中，Federal Circuit在判决中回顾了至少包括第二、第三、第七、第八、就九和第十巡回法院均拒绝遵循Lotus案的事实[4]，Federal Circuit遵循了包括但不限于上述的Mitel, Inc. v. Iqtel, Inc案，并同意了Oracle的观点，即，如果有多种表达方式去表达一个基础的思想，那么该种表达方式本身受到著作权保护（见，“We agree with Oracle that, under Ninth Circuit law, an original work—even one that serves a function—is entitled to copyright protection as long as the author had multiple ways to express the underlying idea.” Id.）；并且，针对涉案的API文件包的结构-顺序-组合（“SSO”），Federal Circuit的结论肯定了其具有独创性而受到著作权保护。 （见，“Given the court’s findings that the SSO is original and creative, and that the declaring code could have been written and organized in any number of ways and still have achieved the same functions, we conclude that Section 102(b) does not bar the packages from copyright protection just because they also perform functions.” Id.）
此外，虽然本文讨论的是游戏规则和操作方法，而考证的案例为计算机软件侵权案件，但是，作为区分思想和表达的方法，正如上述的Mitel, Inc. v. Iqtel, Inc案指出，“抽象-过滤-比较”的方法的适用范围不限于计算机软件领域。 （见，“Although abstraction-filtration-comparison analysis is particularly useful in cases involving copyright in computer programs, we recently noted that the approach merits application in cases that extend well beyond that narrow context. ” Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (1997) ）
(5) In a number of "skin-changing game" cases published by Chinese courts, including courts at all levels in Beijing, they have maintained the same view as Mitel, Inc. v. Iqtel, Inc., and these good cases in China are also contrary to the view of the Lotus case, that is, copyright protection should be granted to the plaintiff who can prove the original rules and methods of operation of the game. For example, in Zishun Company v. Ban Pattern ((2019) Jing 0105 Min Chu No. 43540), the plaintiff presented evidence to the court that the rules of the plaintiff's game and the original structure-sequence-combination of the gameplay, and the Chaoyang District Court of Beijing held that: "The uniquely designed rules and gameplay of online games form part of the expression of online games, and the scope of protection of game continuous screen electronic works formed on this basis should include the above contents." The case was also upheld by the Beijing Intellectual Property Court.
(6) In summary, considering that the basic point of view in the "Negation of Copyright Protection of Electronic Game Rules" seems to be close to the Lotus case, and through the above research of the cases known to me, since the Lotus case is rarely followed, and the analysis process in other cases with the opposite view is enough to convince me, from the above perspective, I would like to express my different opinion on the "Denial of Copyright Protection of Electronic Game Rules".
02 From the perspective of legislative history, the process of amending "works" in Article 3 of the Copyright Law reflects the intention of the legislators to expand the scope of "works", and the view that "the rules of an original video game cannot be protected as works under the Copyright Law because they are ideas" is not in line with the context of Article 3 of the Copyright Law, but also contrary to the legislative intent behind it
China's 2020 revision of the definition of "work" in the Copyright Law has finally explicitly adopted an "open" legislative model, and a copyrighted work is an original and "intellectual achievement that can be expressed in a certain form" in all fields of literature, art and science.
According to Article 3 of the Copyright Law of 2020, an intellectual achievement that is original and can be expressed in a certain form constitutes a "work", according to the definition of this article, a video game rule or operation method that has originality and can be displayed in a certain form meets the definition of "work". Therefore, I have not found an appropriate legal provision to support the view that "the rules of an original electronic game cannot be protected by the Copyright Law as a work because they are ideas" in the "Negation of Copyright Protection of Electronic Game Rules", and as for the fact that Article 6 of the "Regulations on the Protection of Computer Software" does not extend to ideas, processing processes, and operation methods, since we are talking about game rules and not computer software, Article 6 of the "Regulations on the Protection of Computer Software" should not be directly applied.
In addition, looking back at the history of the revision of Article 3 of the Copyright Law, it is clear that the intention of the legislator is to expand the scope of "works" rather than limit them, and to exclude from the scope of "works" the rules of the game and methods of operation that conform to originality, which seems to be contrary to the direction of legislative evolution.
03 Be cautious about the use of the second general clause of the Anti-Law!
The Supreme People's Court has pointed out that "in principle, the Anti-Unfair Competition Law will no longer provide additional protection in areas where the special law on intellectual property rights has made exhaustive provisions, allowing free exploitation and free competition." ” [5]
The "Negation of Copyright Protection of Electronic Game Rules" mentions that "the improper use of electronic game rules can also be regulated through other means." Competitors in the gaming industry may engage in unfair competition if they copy the rules of a game with high commercial value designed by competitors with huge manpower and money, even if the degree of reskinning has made the games of both parties very different in terms of audiovisual effects. ”
I understand that there is a contradiction in this view, that is, if the rules of the game belong to ideas and are not protected by copyright, then "the Anti-Unfair Competition Law no longer provides additional protection in principle, allowing free use and free competition", and there is no problem of improper use, and there is no room for the application of the Anti-Unfair Competition Law.
This will lead to a consequence of insufficient protection, that is, for the in-depth "skin-changing game", if it cannot constitute substantial similarity from the perspective of audio-visual, but it constitutes substantial similarity based on the comparison of the structure-order-combination of game rules, according to Wang Qian's "The Negation of Copyright Protection of Electronic Game Rules" However, at this point, according to the above view of the Supreme People's Court, since the rules of the game are not protected by copyright, there is no room for improper use of the rules of the game to constitute unfair competition, then, since the structure-sequence-combination of the original game rules is copied, it will lead to the possibility that the infringing game will substantially replace the infringed game, and at this time, the plaintiff will be "helpless", which will frustrate the creation and investment of the game, which is contrary to the legislative purpose stipulated in Article 1 of the Copyright Law.
Considering the above three dimensions, I would like to express my different views on the denial of copyright protection of video game rules.
It is hoped that further reflection will be given to this issue by colleagues in the legal profession.
Annotations (scroll up and down to view)
[1] See http://www.cnipr.com/sj/zx/201707/t20170718_213722.html.
[2] At the beginning of the 20th century, this case was described in detail in the book "On Intellectual Property" written by Mr. Zheng Chengsi.
【3】里程碑式的案例请参考第二巡回法院的Computer Associates Intern., Inc. v. Altai, Inc., 982 F.2d 693 (1992)
【4】Id. at 1366, 1367.
[5] See "Accurately Grasping the Current Policies on Judicial Protection of Intellectual Property Rights and Further Strengthening the Judicial Protection of Intellectual Property Rights - Speech at the Seminar for Presidents of Intellectual Property Divisions of National Courts" (February 18, 2012).
Author: Zhang Hongbin
Edited by Eleven