The new copyright law responds to the demand for protection of online games and expert advice

Cautiously determine the fair use of pan-game content

　　● Online game copyright is one of the most complex and important issues in Internet copyright. The classification and protection of online game works involve multiple subjects, and it also affects online game infringement and fair use disputes.

　　● Online games are to be recognized as works and have been interfered by such elements as "filming". The provisions of "audiovisual works" have broken the barriers to the definition of copyright objects for online games.

This revision of the Copyright Law has promoted the copyright protection of online games as a whole

　　● Be cautious in determining fair use. If the anchor can use game content for free, it may cause game content creators to lose enthusiasm and hinder innovation

　　□ reporter Zhang Wei

　　On November 11, 2020, the latest revision of the "Copyright Law of the People's Republic of China" was adopted at the 23rd meeting of the Standing Committee of the 13th National People's Congress and will come into force on June 1, 2021.

Since then, my country's ten-year-old revision of the copyright law has finally come to fruition.

　　The impact of the new copyright law on related industries is far-reaching. In particular, the changes made with the times in response to the development of the Internet era will have a positive impact on the development of the copyright industry in the Internet-related fields.

In the recent "Copyright Law Amendment and Online Game Industry Ecological Development Seminar" hosted by the Intellectual Property Research Center of Zhongnan University of Economics and Law, many experts from the legislative, judicial, academic and practical circles pointed out that the new copyright law has And the revision of related clauses has responded to the protection needs of online game works, etc., and has a profound impact on the development of cultural industries such as games.

　　It is worth noting that online game copyright is one of the most complex and important issues in Internet copyright. The classification and protection of online game works involve multiple subjects, and it also affects online game infringement and fair use disputes.

Clarifying the copyright issues of online games is of far-reaching significance to promoting the stable development of the online game industry.

In the future, there are still some issues that need to be addressed in the implementation of the copyright law and supporting legislation.

New types of audiovisual works

Responding to online game protection needs

　　The online game industry has become an important part of the Internet's digital economy. Like other digital content cultural industries, the vigorous development of online games at home and abroad continues to demonstrate my country's cultural soft power.

According to the China Game Industry Report 2020, the actual sales revenue of China's game market in 2020 is 278.687 billion yuan, of which the actual sales revenue of China's self-developed games in the domestic market will reach 240.192 billion yuan.

　　As an emerging industry, the copyright protection of online games has always been controversial.

Whether online games constitute a "work" protected by copyright law also has different opinions in various circles.

On November 11, 2020, the 23rd Meeting of the Standing Committee of the 13th National People’s Congress deliberated and voted to pass the "Decision on Amending the Copyright Law of the People’s Republic of China", which revised the types of works and related provisions, It has a profound impact on the development of the cultural industry.

　　Article 3 of the New Copyright Law stipulates that a work refers to an intellectual achievement that is original and can be expressed in a certain form in the fields of literature, art, and science.

At the same time, a new type of "audiovisual works" has been added.

Sun Yichao, deputy director of the Civil Law Office of the Legal Work Committee of the National People’s Congress, pointed out that with the development of the Internet, in addition to traditional movies and TV series, new types of audio-visual content such as online games, live games, short videos, etc. have emerged, requiring a coverage in the copyright law. The expression of a wider range of audiovisual works, the revision of "film works and works created in a similar way to film production" in the current copyright law to "audiovisual works" is a major development.

　　"Online games are to be recognized as works, and have been interfered by elements such as'filming'. The provisions of'audiovisual works' have broken down barriers to the definition of copyright objects for online games." According to Xiong Qi, deputy dean of the Law School of Huazhong University of Science and Technology, This revision of the Copyright Law has promoted the copyright protection of online games as a whole.

　　Wu Handong, the honorary president of the Intellectual Property Research Association of the Chinese Law Society, pointed out that the revision of the Copyright Law clarified the idea of ​​"open work types" and legal rights, which is conducive to the protection of new types of works such as online games, live events, and musical fountains. Online games can be classified as audiovisual works.

　　Whether it is original or not is a necessary condition for obtaining copyright protection in the form of works.

Zhang Shuqing, deputy chief of the Intellectual Property Division of Hangzhou Intermediate People's Court, believes that in terms of game types, film-like works in the old law are not suitable for classification as games, and the provisions of "audiovisual works" in the new law are more appropriate.

　　Cao Liping, judge of the Intellectual Property Division of the Beijing Higher People's Court, holds the same view.

She believes that the revision of the copyright law solves the problem of determining the type of work for the overall screen of online games, and that games should be regarded as audiovisual works other than film and television dramas.

The rise of the emerging game industry

Questionable fair use

　　Currently, the online game industry is undergoing transformation and upgrading under the active guidance of policies. With online games as the core, new formats such as live game broadcasting, e-sports, cloud games, and short video games have been derived.

Guo Chengjie, research director of the Interactive Entertainment Research Department of iResearch Consulting Group, said that high-quality products and refined operations in the industry have enabled the game market to cross the cold winter. Game-derived video content such as "live broadcast + short video" is developing rapidly, and competition is fierce. Also innovating business models.

　　The operational thinking of industrial pan-games poses a challenge to the copyright protection of online games.

The use of online games in these new formats, such as game live broadcasts, game short videos, and cloud games, is whether the use of online games is fair or requires authorization, which has also aroused continuous industry attention and discussion.

　　Tao Gan, director and associate professor of the Innovation and Competition Research Center of China University of Political Science and Law, believes that in recent years, around game live broadcasts, short videos and e-sports events and other game peripheral industries, when playing or using game running screens, it should focus on the method and purpose of use. , Ratio and results, etc., to judge whether it is reasonable or not.

In most cases, it is difficult to constitute fair use.

　　Article 24 of the new Copyright Law stipulates that under 13 circumstances, a work may be used without the permission of the copyright owner and no remuneration shall be paid to him. However, the name of the author or the title of the work shall be specified, and the normal use of the work shall not be affected , And have to reasonably damage the legitimate rights and interests of copyright owners.

These include personal learning research, news reports, classroom teaching, library display, etc.

　　Jiao Heping, an associate professor at Northwest University of Political Science and Law, believes that at the current stage of online game development, online game live broadcasts cannot constitute fair use.

Combined with the legal text, online game live broadcast is neither "introducing or commenting on a certain work (game screen)" in Article 24 of the New Copyright Law, nor is it "explaining a certain problem"; and the game screen is often Full utilization exceeds the "appropriate" level.

Therefore, the game live broadcast cannot constitute "personal use", "news report" or "appropriate quotation" in the legal situation of fair use.

　　Song Jian, a member of the Judicial Committee of the Jiangsu Higher People's Court, pointed out that online games are an industry that relies heavily on copyright. The use of game works must be used with permission. If used without permission, it will cause great harm to the game industry.

　　Long Xiaoning, a professor at the Intellectual Property Research Institute of Xiamen University and a distinguished professor of the "Changjiang Scholars" of the Ministry of Education, also stated that it is necessary to be cautious in determining fair use. If the anchor can use game content for free, it may cause game content creators to lose enthusiasm and hinder innovation.

Strengthen the protection of the game industry

Crack down on piracy and infringement

　　The online game industry has passed the cold winter and is moving towards original boutique products. While driving the development of China's digital cultural industry, it has also suffered from "malignant tumors" such as plagiarism, piracy and online black and gray production.

Game swapping, game element infringement, game derivative infringement, and cloud game infringement have become the main types of online game infringement.

　　"The essence of the skin-changing game is to completely change the overall appearance of the game, and retain the plagiarism of the original gameplay, thereby simplifying the most economic and time-consuming polishing trial and error and debugging stage, and directly realize the game The logic is self-consistent.” Xu Jun, President of the Intellectual Property Division of the People’s Court of Shanghai Pudong New Area, pointed out that “the proliferation of skin-changing games will impact the original game industry and need to protect the non-picture elements of online games.”

　　Fu Gang, a senior partner of Shanghai Xieli Law Firm, pointed out that the current judicial practice has deepened the understanding of online games, deepened the game development process to explore the boundaries between ideas and expressions, and adopted overall protection ideas in the protection of game elements.

In addition, relevant judicial practices are also trying to explore the protection of interactive design elements, such as game maps, scene design, etc. The plagiarism of skin-changing games has been curbed to a certain extent.

　　With the rapid development of new technologies represented by networking and digitalization, some existing provisions of the current copyright law can no longer meet the needs of practice.

The new copyright law responds to the actual needs for the protection of new types of works and conforms to the development of the digital cultural industry market.

Xu Jun believes that in the face of the development of new technologies and industries, copyright justice should not stick to its standard, but should use the basic principles of copyright to respond to the urgent needs of industrial practice on the basis of industrial laws, and encourage industrial practice through effective property rights incentives.

　　In this regard, Xu Xiaoben, associate professor of the Intellectual Property Research Center of Zhongnan University of Economics and Law, also said that the operational thinking of industrial pan-games poses a challenge to the copyright protection of online games, and a strategic layout should be considered.

Pan-games blur the boundaries between the types of works, making the copyright protection around games develop more refined and deeper, and the demand for the protection of individual elements in game works has increased. The open work definition and comprehensive clauses in this copyright law amendment The emergence of, provides a legal path for us to claim rights to game elements.

　　The development of science and technology has also provided new ideas for the protection of online games.

Wang Qi, Vice Chairman and President of China TV Ruide Culture Media Co., Ltd., pointed out that in the case of massive infringement of game content, through the application of new technologies such as content collection and crawling technology, fingerprint technology and video content understanding, efficient and comprehensive Copyright monitoring.

At the same time, it can also provide infringement evidence collection and storage services through blockchain technology. After docking with the court, it can realize fast and convenient copyright protection.

　　Of course, the new copyright law also has issues that need to be addressed. Fu Gang pointed out that, for example, whether my country reforms the safe haven principle of Internet platforms, further refines the notification deletion rules, and promotes platforms to obtain copyright authorizations. All of these need to be included in subsequent copyright-related legislation. Respond.