Gameplay is included in the scope of protection, cross-border reproduction or competition in the same industry

World Intellectual Property Day, celebrated annually on April 26, was established by the World Intellectual Property Organization (WIPO) to raise public awareness of the importance of intellectual property, including patents, trademarks, industrial designs, copyright and how innovation and creativity can be encouraged through these intellectual property rights.

In the digital age, video games are a new field of innovation and cultural expression, and the importance of intellectual property protection is becoming more and more prominent. With the advancement of technology, infringement has become diversified and hidden, posing a challenge to the rights and interests of creators and the healthy development of the industry. Today is the 24th World Intellectual Property Day, and we focus on the protection of intellectual property rights in online games, revealing new trends in infringement and exploring protection mechanisms through case analysis and legal interpretation.

01 趋势

Infringement methods tend to be technical, intelligent and hidden

In recent years, with the development of technology, the issue of intellectual property infringement in online games has become more complex and diverse.

Jiang Nandi, a lawyer at Beijing Lusheng Law Firm, told the reporter that the intellectual property infringement methods of online games have shown a trend of technology, intelligence and concealment, and the infringement methods have begun to bid farewell to simple and crude models such as copying the source code of games.

According to Jiang Nandi, in the case of "Legend of Blood", which was pronounced in 2021 and was the first case in the country to be found to be infringing and pirated as an "audiovisual work", the infringer not only illegally obtained the source code of the game, but also modified and adjusted the code to circumvent copyright detection and build servers to operate private games such as "Memory Legend" and "Legend of Jiangnan". However, because the developed and launched game was highly consistent with the original version in terms of characters, buildings, maps, props and other picture effects, it was finally judged to constitute the crime of copyright infringement.

The rapid development of new technologies and new forms of business has brought about new models of infringement. In the country's first case involving 5G cloud games infringing on the right of information network transmission and unfair competition, the cloud gaming platform involved in the case provided cloud gaming services such as "League of Legends", "Crossfire" and "Dungeons and Warriors" without Tencent's authorization, and finally compensated Tencent 2.58 million yuan. In addition, with the rise and change of live broadcasts, short videos and other formats, game live broadcasts and short game videos have also become hot spots for rights protection in recent years.

The copyright of live game broadcasting is included in the scope of protection of the new Copyright Law

Fortunately, with the third amendment to the Copyright Law in 2020, some infringement issues have been curbed and improved. Taking game live streaming as an example, before the amendment, the type of work to which the continuous game footage presented by game live streaming was not clearly defined, and in judicial practice, some courts protected it as "cinematographic works and works created by methods similar to filmmaking". After the amendment, the new Copyright Law expands the definition of "audiovisual works" to include continuous dynamic images formed by running online games into the scope of protection of "audiovisual works", so that they are directly protected by the Copyright Law.

The new Copyright Law also expands the scope of broadcasting rights, including live game streaming directly within the scope of protection of broadcasting rights. According to Liu Fan, a lawyer at Lusheng Law Firm, "According to the new law, any unauthorized public dissemination of game footage, including through live webcasts, may constitute copyright infringement. "With the amendment of the Copyright Law and the development of related judicial practice, the copyright issue of game live streaming has been more clearly regulated and protected.

In addition, judicial protection has been strengthened on the mainland, and adjudication standards have gradually shown a trend of uniformity. In judicial practice, the court has also taken more active measures to protect game copyrights, such as pre-litigation injunctions, act preservation and preliminary judgments, forming a protection system that combines multiple remedies before, during and after litigation.

At the same time, the newly revised Copyright Law has raised the upper limit of compensation for infringement, raising the upper limit of statutory damages from 500,000 yuan to 5 million yuan and introducing a punitive damages system, which can be compensated for intentional infringement of copyright or related rights and the circumstances are serious, not less than one time but not more than five times the amount of compensation determined. Lawyer Liu Fan said: "This amendment provides stricter protection for game copyrights, significantly increases the cost of infringement, and helps curb malicious infringement in the game industry." ”

02 Subversion

Originality of gameplay becomes the object of protection

Some of the changes are direct and disruptive. In the field of online games, gameplay infringement is a complex and prominent issue. For a long time, some businesses have adopted the practice of imitating or even plagiarizing and "changing" the successful games of others. This not only infringes on the intellectual property rights of the original creators, but also has a negative impact on the innovation momentum and healthy development of the entire industry.

The principle of the dichotomy between thought and expression has always been an axiom in the field of copyright law – copyright law does not protect ideas, but only the expression of ideas. In the past, gameplay was often regarded as "thought" rather than "expression", so it did not fall within the scope of copyright protection. Today, there has been a major shift in the situation.

On May 23, 2023, NetEase's "The Shore of the Land" project team posted on Weibo that the court ruled in the first instance that "Three Kingdoms: Strategic Edition" (hereinafter referred to as "Three Kingdoms") constituted copyright infringement. It is worth mentioning that the focus of this case is mainly reflected in whether there is "plagiarism" of the original gameplay.

According to the first-instance judgment of the case, NetEase asserted that "The Shore of the Land" has a high degree of originality, is an artistic expression that embodies a high degree of creativity, and should be protected by the Copyright Law, while "Romance of the Three Kingdoms" reproduces a large number of original content of "The Shore of the Land". To this end, NetEase has put forward a number of demands, including a request for compensation of 50 million yuan from "Three Kingdoms", a request to delete the content involving copyright infringement in the "Three Kingdoms" game, and to stop operating the game.

In this regard, the "Lingxi Entertainment" that published "Three Kingdoms" argues that "The Shore of the Land" is not completely original, and "The Shore of the Land" also borrows from the "Three Kingdoms", and the two have obvious differences in the form of expression due to their different themes.

The Guangzhou Internet Court held that the original rules of the game are the heart and soul of "The Shore of the Land" and should be protected. The court pointed out that although "Three Kingdoms" has made some additions and deletions, it has not changed the internal connection logic involving the 79 game rules, and will still bring players a similar game experience to "The Shore of the Land".

In May last year, the court ruled in the first instance that "Romance of the Three Kingdoms" constituted copyright infringement, and required Lingxi Interactive Entertainment to delete or modify the infringing content and compensate NetEase 50 million yuan, which is also the highest amount of compensation awarded in domestic game infringement dispute cases. However, the court denied NetEase's request to suspend the game.

In January 2024, the second instance of the case was heard at the Guangzhou Intellectual Property Court. The relevant person in charge of Lingxi Mutual Entertainment told the reporter that an appeal was immediately launched after the first instance last year, and it is still under trial. According to the relevant person in charge of NetEase, there has been unprecedented new progress in the case.

The amount and the name of the infringement are subject to the final judgment

Hong Guobin, a partner at Guangdong Zhuojian (Longhua) Law Firm, said that in the first-instance determination of the case of "The Shore of the Land" v. "Romance of the Three Kingdoms", the court referred to the calculation angle of the amount of compensation and the award in the "Minecraft" case. However, since it is not a final judgment, the amount and the name of the infringement need to be determined by the final judgment before it can be accurately evaluated. In other words, after the second-instance judgment, the amount of compensation, the name of the infringement, and whether the first-instance judgment will be overturned will be redefined.

is also NetEase as the plaintiff, and the infringement case of "Milk Block" did usher in a "reversal" in the second instance.

In 2018, NetEase sued Huya and others to the court, claiming that the game "Milk Cube" under Guangzhou Huaduo Network Technology Co., Ltd. and Guangzhou Huya Information Technology Co., Ltd. copied a large number of art resources and the overall picture of the game "Minecraft" represented by NetEase, which was suspected of copyright infringement. In addition, NetEase believes that "Milk Block" plagiarizes the core content of "Minecraft", that is, the gameplay rules, and is suspected of constituting unfair competition, and requests an order to stop the infringement, eliminate the impact, and compensate economic losses totaling 20 million yuan.

In 2020, the Guangzhou Tianhe District People's Court made a first-instance judgment and found that the game screen of "Milk Block" was substantially similar to "Minecraft", which constituted copyright infringement.

In 2023, the Guangzhou Intellectual Property Court rendered a different judgment in the second instance. The court held that although there were many game elements and their combinations in the two games with the same and similar designs, there were significant differences in the visual expressions, so the overall graphics of the two games did not constitute substantial similarity. In addition, the two games are different in terms of player character settings, game feature systems, game mission settings, etc., so "Milk Cube" does not copy the gameplay rules of "Minecraft" as a whole.

Therefore, the court of second instance found that the acts of Huaduo and Huya Company did not constitute copyright infringement or unfair competition, and thus revoked the judgment of the court of first instance.

The jury is still out on how to protect the gameplay individually or as a whole

Industry insiders said that regardless of the verdict in the "Milk Block" case, the gameplay has always been the focus of the trial. It can be seen that gameplay has become an important object of concern for intellectual property protection.

However, according to Beijing Lusheng Law Firm, there is still no conclusion on what type of work the gameplay should belong to, and whether it should be protected individually or as a whole. Lawyer Wang Dongmi said: "In the Three Kingdoms case, the court recognized the gameplay as 'other achievements that meet the characteristics of intellectual achievements', and held that the gameplay was a separate type of work and protected separately. In the case of "Milk Cube", the court held that the overall picture of the game in question constituted an audiovisual work, and the gameplay in it was inseparable from the game screen. ”

At the same time, from the perspective of industrial development, the early practice of "not protecting" gameplay has brought more room for development to the game industry. Nowadays, it has experienced a blank period in the market and entered a period of market competition. At this stage, the law should appropriately adjust the intensity of its protection, and the purpose of its protection should also change from simply encouraging creativity to preventing monopoly. "There are two sides to everything. In terms of the legal protection of gameplay, a certain amount of room should be given for avoidance, and the content that is common in the industry, falls into the public domain, and is not specifically expressed should be excluded from the scope of monopoly in a timely manner, so as to avoid the restriction of the free competition market due to 'legal monopoly'. Lawyer Wang Dongmi said.

03 Crossover

The script kills the infringing game IP and constitutes unfair competition

Compared with the gameplay, the infringement of the game IP itself is more intuitive and direct. In the past, the establishment of game private servers has always been a common case of such infringement, but with the expansion of the influence of game products, the growth of the number of gamers, and the emergence of new consumer formats, many new "cross-border" cases have also begun to appear.

In recent years, script killing has become one of the favorite social entertainment methods for the majority of young people. With the growth of demand for scripts, some businesses have also included game IP in the script category of script killing.

On August 26, 2022, the Shanghai Pudong New Area People's Court publicly heard a case of script killing infringement of the game IP of "Legend".

According to the data, "Legend" is a massively multiplayer online role-playing (MMO-RPG) online game, which was introduced to China in 2001 by Shengqu Games (formerly Shanda Games), a subsidiary of Century Huatong. As the first game in China that has been in operation for more than 20 years, "Legend" has a high reputation and market recognition.

According to the verdict, the studio founded and operated by the defendant Ji Mouqi issued a city-limited script called "Legend", which was promoted and sold through WeChat, and the defendant Shanghai Black Eye Circle Culture Media Co., Ltd. (hereinafter referred to as the "Black Eye Company") used the script in the script killing hall it operated.

According to Shengqu Games, after learning of the incident, the company's legal team cooperated with the notary public to quickly complete offline on-site evidence collection, and found that the script used the corresponding elements of the "Legend" game in many aspects such as name, plot, card design, script props, game mechanism design, etc., which seriously infringed the trademark rights and copyrights of "Legend" and constituted unfair competition.

In May 2023, the Shanghai Pudong New Area People's Court made a first-instance judgment. After trial, the court held that the script killing involved in the case not only infringed the trademark rights and copyrights related to "Legend", but also because the purpose of the script killing game and the online game was to enrich the spiritual and cultural life of the relevant public, the original defendant had a competitive relationship in the same industry, which could easily cause the relevant public to associate the accused "Legend" script killing with the high-profile "Legend" game, which constituted unfair competition.

The court ruled that the producer and distributor of the script killing of "Legend" should bear full responsibility for the acts in this case, and that the script killing hall should bear joint and several liability within a certain range. Shengqu Games revealed to the reporter that the defendant did not appeal the first instance, and the judgment has taken effect.

The theme park is suspected of infringing the trademark rights and copyrights of online games

As the first case of script killing infringement of online game intellectual property rights in China, the "Legend" script killing infringement case has important exemplary significance. The case was also selected as one of the "Top 10 Intellectual Property Adjudication Cases with the Most Research Value in China" in 2023 published by the Shanghai Intellectual Property Research Institute.

Lawyer Wang Dongmi said that as an emerging entertainment industry, script killing lacks a mature IP production mechanism, and at the same time, the presentation form is relatively simple, so some businesses may refer to the existing popular IP, plots and settings, "such as film and television works, game works, folklore, etc., which is very likely to lead to infringement."

In fact, intellectual property infringement cases arising from "cross-border" games in other industries are not isolated cases. "Dragon Nest", which is also a well-known game IP under Shengqu Games, was "infringed" by the theme park.

It is reported that Huachang Dragon Nest and other amusement parks used the game name and character image of "Dragon Nest" as the theme of the amusement park without authorization, and copied the map and plot in the game into the park, which is suspected of infringing the trademark rights and copyrights of Shengqu Games.

At the beginning of 2023, the court made a first-instance judgment that "Dragon Nest" and "Huachang Dragon Nest" Parks infringed the trademark right of "Dragon Nest", and required the defendant to immediately stop the infringement and compensate Shengqu Games about 1.6 million yuan. In addition, according to the ruling made by the State Intellectual Property Office last year, it was determined that "Huachang Dragon Valley" and "Dragon Valley" constitute similar trademarks.

Shengqu Games told the reporter that as the first trademark dispute case between a theme amusement park and a well-known online game in China, the case is currently in the second instance.

04 Breaking the circle

In addition to the game itself, rights and interests such as audiovisual materials are attracting more and more attention

In the "Legend" script murder case, Shengqu Games claimed that 32 art works such as "Blade of Destiny" were infringed, and the court finally recognized 16 of them. In fact, game materials such as art works have always been an important area of game copyright protection.

In the past, because the gameplay was not included in the scope of intellectual property protection, the "copycat" games often started from the game materials such as interfaces, maps, props, icons, etc. to protect rights. As the domestic game market enters the stage of full competition. Nowadays, game manufacturers are paying more attention to the intellectual property rights and interests such as copyrights and trademark rights of the content of the game itself, and they are also paying more and more attention to the rights and interests of materials and peripherals outside the game.

On February 26 this year, miHoYo Technology (Shanghai) Co., Ltd. (hereinafter referred to as "miHoYo") and Shanghai Taomee Network Technology Co., Ltd. (hereinafter referred to as "Taomee Network") held a trial on copyright ownership and infringement disputes.

According to public information, Taomee is the R&D and operator of the well-known games "Moore Manor" and "Sail", while miHoYo is the first of the "Shanghai Game Four Dragons", and its games such as "Genshin Impact" have been widely praised around the world.

According to insiders, the reason why miHoYo sued Taomee Network this time is related to the use of game audiovisual materials of miHoYo's game "Honkai Academy 2" in the announcement of "Moore Manor Mobile Game".

In March this year, the Beijing Shijingshan Court also announced a dispute case involving art materials of miHoYo games. miHoYo's subsidiary accused a Beijing-based technology company and the other three defendants of using Genshin Impact game materials on platforms such as the official account operated by them without permission, and publishing relevant game content on multiple platforms.

During the trial of the case, the defendant argued that the relevant acts were the introduction and diversion of the Genshin Impact game, which complied with the provisions of the Copyright Law on fair use. However, after the trial, the court held that the defendant had infringed the plaintiff's right to disseminate information on the network by using a large number of game materials such as Genshin Impact game characters and weapon pictures in its WeChat official account, official website, WeChat mini program, mobile phone application and Weibo account without authorization. In addition, the court also found that the defendant's relevant conduct also constituted unfair competition.

In the end, the court ordered the three defendants to immediately stop the relevant infringement and compensate miHoYo's subsidiary a total of 2.06 million yuan. At present, all three defendants have appealed.

In addition, in July 2023, miHoYo announced that the company helped the Shanghai police successfully dismantle the whole chain of pirated game production and sales gangs. It is reported that the Shanghai Xuhui police arrested 5 suspects at that time and seized more than 30,000 pieces of infringing peripherals and parts, involving an amount of more than 100 million yuan.

In this regard, Beijing Lusheng Law Firm said that after the success of the game itself, it will develop derivative markets based on game IP, thereby enhancing the influence of game IP and expanding the ecosystem of game IP. In the future, based on the vigorous development of the game industry itself, the protection of intellectual property rights for games will become more normalized and refined. The cooperation of multiple actors in the game industry will promote the better development of the game industry and make it more widely recognized by society.

Written by: Nandu reporter Shi Li Lin Wenqi