Internet game infringement cases are common. Previously, "Miracle Myth" plagiarized "Miracle MU", and the court ordered the defendant to compensate the plaintiff 4 million yuan. Later, "Mini World" plagiarized the gameplay rules of " Minecraft ", and the court ordered the defendant to compensate the plaintiff 50 million yuan .
In the field of online game infringement, there is no consensus on the determination of some issues at the judicial level, such as the protection model of online games, whether game rules can be incorporated into the overall protection model for protection, etc. This article combines judicial cases to analyze the relevant determination rules of infringement in online games.
Catalog
1. Online game protection mode
(1) Overall protection mode
(2) Online game elements individually recognized work protection mode
(3) Online game source code protection mode
2. Protection of game rules in online games
(1) To what extent are game rules specific expressions
(2) After game rules are expressed, can they be obtained according to the overall picture protection mode
(3) Game rules are protected by the Anti-Unfair Competition Law Protection
3. Infringement determination rules for the overall protection model of online games
(1) Element comparison + overall perception
(2) Element comparison
(3) Judgment based on the overall audio-visual expression of the game
4. Conclusion
1. Online game protection mode
Regarding the protection mode of online games, there are three protection modes in judicial practice. One is to adopt an overall protection mode for online games, the second is to protect each element of online games individually, and the third is to protect the source code of online games. This article analyzes these three modes.
(1) Overall protection mode
overall protection mode protects the overall picture of online games as a movie-like work (now an audio-visual work). The new "Copyright Law" that will be implemented in June 2021 cancels films and film-like works and replaces them with audio-visual works. The meaning of the new audio-visual works is equal to the sum of film works and film-like works before the amendment. The so-called "game screen" of
refers to the image screen (often accompanied by sound) that the game program automatically or in response to the game user's operation instructions temporarily retrieves preset text, pictures, video, audio and other material fragments in the game, and uses technical equipment to present the image screen in real time (often accompanied by sound). The overall game screen refers to the entire game screen formed after the game is run [1].
Since the judgment of the "Miracle MU" [2] game infringement case, the number of court decisions that determine that the entire game screen constitutes a quasi-electrical work has gradually increased. However, there are many types of games, such as RPG games, sandbox games, FPS games, card games, etc. Since different types of games have different gameplay rules, the images presented will be different. Even games of the same type can be different due to the addition of innovative elements. Therefore, not all the overall graphics of a game can constitute a quasi-electric work. Whether the overall graphics of a game can constitute a quasi-electricity work needs to be determined on a case-by-case basis. Therefore, when determining whether the overall picture of the game constitutes a quasi-movie work, it is crucial to be familiar with the court’s considerations for this determination.
In the case of copyright infringement dispute and unfair competition dispute between Guangzhou Weidong Network Technology Co., Ltd. , Guangzhou Shuoxing Information Technology Co., Ltd. and Shanghai Zhuangyou Information Technology Co., Ltd. [3], the court held that the plaintiff's "Miracle MU" game overall screen constitutes a quasi-movie work, and there is no need to impose various restrictions on textual works and artistic works. As an integral part of the game screen, game materials need to be protected separately. The specific analysis is as follows:
"Miracle MU" promotional poster
For another example, in Guangzhou NetEase Computer System Co., Ltd. , Shenzhen Mini Wan Technology Co., Ltd. , Shanghai Netzhiyiwu World Network Technology Co., Ltd. In the case of copyright infringement dispute and unfair competition dispute [4], the court considered the following four aspects when determining whether the plaintiff's "Minecraft" constituted a movie-like work:
"Mini World" (left) and "Minecraft" (right)
(2) Individual protection mode for each element of online games
In online game infringement, the plaintiff can claim infringement by treating various elements in the game as separate works. For various elements in the game, according to their respective characteristics, they can be claimed as artistic works, textual works, musical works, etc. The court will identify them separately according to the types of different works.
For example, in the case of copyright ownership and infringement disputes between Blizzard Entertainment Co., Ltd., Shanghai Netzhiyi Network Technology Development Co., Ltd. and Shanghai Youyi Network Technology Co., Ltd.[5], the plaintiff claimed to protect five categories of works: Hearthstone logo, game interface, card surface design, card and deck combination, video and animation special effects, as follows:
(3) Protection model of online game source code
In an online game infringement case, the online game source code can be protected as a computer software work. Regardless of whether the plaintiff claims the overall protection model or the individual element protection model, if the online game infringement also constitutes source code plagiarism, it can claim infringement of the computer software work.
According to Article 3(1) of the Computer Protection Regulations: " computer program refers to a sequence of coded instructions that can be executed by a device with information processing capabilities such as a computer in order to obtain a certain result, or a sequence of symbolic instructions or a sequence of symbolic statements that can be automatically converted into a sequence of coded instructions. The source program and target program of the same computer program are the same work."
A source program can only be converted into a target program in a unique form, but a target program may come from source programs in multiple languages and multiple ways of writing the same language. That is to say, the fact that the target program is the same or similar does not mean that the source program must be the same or similar. Therefore, in cases where a game infringes a computer software program, a comparison is generally made on whether the source program of the defendant's game software is the same or similar to that of the plaintiff's game software. [6]
However, if the defendant refuses to provide the source code of the allegedly infringing game, the court will not be able to conduct source code comparison. However, after the plaintiff has tried its best to provide evidence, if the defendant still does not provide its source code for comparison, the defendant will bear the consequences of being unable to provide evidence.
For example, in the copyright infringement dispute case between Zhile Software (Beijing) Co., Ltd. and Chongqing Mengmai Technology Co., Ltd. [7], the court held that the plaintiff’s HOC game and the defendant’s Three Realms Soul game had the same file naming format in the program files of folders and subordinate folders (files), and the login and operation of the plaintiff’s and defendant’s games The interface, except for the page background pattern and character names, is similar in its main frame and functions, such as "Create a Team", "Select a Hero", "Battle List", Expand the Minimap Mode, Return to the Game Home Page, etc. The displayed interface frame, columns, prompt content, as well as the "Operation" sub-interface of "Options", "Chat Interface" and other page structures, names, icons, etc. are similar. Moreover, in the configuration file of the Defendant’s Three Realms Soul game software, “gameloft” and other contents related to the Plaintiff’s company also appeared.
In addition to the plaintiff's evidence of a large number of similar circumstances, the plaintiff applied to the court for identification of the source program, code and document content of the defendant's Souls of Three Worlds game software and the plaintiff's "HOC" game software, and submitted the "HOC" game-related document CD and program CD, HOCSVN work log data CD and other materials to the court for identification. The defendant should bear the burden of proof for his independent creation and completion of the Three Souls of Souls game, but the defendant did not provide corresponding evidence to prove it. From the perspective of the burden of proof, the defendant should bear the consequences of failure to prove the case. Therefore, the court held that the defendant infringed the copyright of the plaintiff’s “HOC” game software.
2. Protection of game rules in online games
The Copyright Law does not protect abstract ideas, concepts, and systems, but only protects the specific expression of ideas in various tangible ways such as text, art, music, etc. [8]
Whether the game design itself constitutes a work should be analyzed at different levels in an abstract and general way. Generally, the basic gameplay of similar games belongs to the basic rules and belongs to the category of ideas, and cannot fall into the scope of protection of copyright law. If the party claims that the game design constitutes a work, it should prove that the game design it claims belongs to specific rules and is an expression of originality. The specific rules are a series of mechanisms and combinations of mechanisms that guide player behavior on the basis of basic rules, so that the gameplay of the entire game has personality or characteristics compared with other games. [9]
(1) To what extent can game rules be specific enough to constitute expression?
If game rules are too abstract, they can only belong to thoughts. So to what extent can game rules be specific enough to constitute expression? Let’s take a look.
In the case of Blizzard Entertainment Co., Ltd., Shanghai Netzhiyi Network Technology Development Co., Ltd. and 4399 Network Co., Ltd. , Guangzhou 4399 Information Technology Co., Ltd. copyright infringement dispute and unfair competition dispute [10], the plaintiff's presentation of the "Overwatch" online game rules can be roughly summarized into five levels:
The court held that the essence of the so-called "reskinned game" is to comprehensively change the entire external art style of the fifth layer of the game, while retaining the plagiarism of the third and fourth layer content, thereby simplifying the core game resource production and functional debugging stages that consume the most economic and time costs to the greatest extent, and directly realizing the logical self-consistency of the game.
Whether the above-mentioned third- and fourth-layer design structures fall within the category of "expression" protected by copyright law should be comprehensively judged based on the characteristics of this type of game and player experience.
When players start to enter the FPS game, the appearance of the hero, the choice of types of buildings on the map, the design of the building, the use of colors and other external presentations with aesthetic effects are downplayed and abstracted. Game design elements such as the route of the map, the location selection of shooting points and hiding points, the advantages and disadvantages of the selected characters' skills in the battle, the choice and matching of the characters of oneself and teammates, the choice and matching of the opponent's characters, and the placement of blood packs are highlighted.
Most of these game design elements exist in the third-level design, and are integrated with the rules of the game in the fourth-level resource connection. Game rules are externally presented through the production of game resources with game design elements as the core, and this external presentation is expression. Therefore, the travel route of the game map, the design of the map's entrances and exits, the types of characters, skills and weapon combinations as a whole constitute a specific expression of the FPS game rules.
(2) Whether the expression of game rules can be protected according to the overall picture protection mode
As for whether the overall picture protection mode can protect the rules of game play, various courts have different views, as detailed below.The overall picture protection mode of
can only protect the game rules expressed as pictures.
has been involved in copyright infringement disputes and unfairness in Guangzhou NetEase Computer System Co., Ltd., Shenzhen Miniwan Technology Co., Ltd., and Shanghai NetEase World Network Technology Co., Ltd. In the competition dispute case [11], the court held that the part of the content that has formed an original expression within the scope of the game gameplay rules, if it constitutes a work, may also be different from the original expression of the game screen as an audio-visual work. The two are objects of different natures and cannot be confused.
takes the game involved in the case as an example. The specific design of the game play rules includes both audio-visual expressions (such as flat icons, three-dimensional shapes, animated special effects of game resources/elements, etc.) and non-audio-visual expressions (such as the functional uses of game resources/elements, how to obtain them, synthesis rules, numerical attributes, etc.). If the graphical expression and non-graphical content are simply and generally combined into one, in fact, original expressions of different natures are equivalently replaced within the scope of the same work, which exceeds the scope of protection of game screen copyright.
In summary, the overall screen protection mode protects continuous images. If there are game rules that are non-screen content, they are not within the scope of protection of the overall screen protection mode. The
game rules apply to the overall screen protection mode of electronic works
in the case of Suzhou Xianfeng Network Technology Co., Ltd. vs. Shanghai Kaiying Network Technology Co., Ltd. , Zhejiang Shenghe Network Technology Co., Ltd. Copyright infringement disputes and unfair competition disputes [ 12], the court held that the game designer expresses the specific gameplay rules of a single game system through the game interface in the continuous dynamic images of the game, or through the straightforward text form in the interface, or through the continuous game operation interface, so that the player can clearly perceive the game and carry out interactive operations accordingly, which is expressive.
As mentioned before, in ARPG electronic games, the gameplay settings such as character selection, growth, and combat are narrative in nature, relying on the detailed game rules presented on the game interface, similar to the detailed plot of a movie. During the game development process, the game rules are implemented through drawing and designing the game interface. Expression has a certain similarity with the process of film creation based on text scripts, drawing sub-shot scripts, filming, and conveying plots. It can be said that the detailed game rules embodied in the game interface design constitute a specific presentation method of the game gameplay rules. It is a fully described structure that constitutes the expression of the work.
For another example, in the case of Suzhou Xianfeng Network Technology Co., Ltd. vs. Shanghai Kaiying Network Technology Co., Ltd. and Zhejiang Shenghe Network Technology Co., Ltd. [13] involving copyright infringement disputes and unfair competition disputes, the court held that the specific gameplay rules and plots of games constitute the game. The core of the game, and its specific expression through the game interface or continuous dynamic pictures is also the main content of the game perceived by players. Taking this part of the content as a core component and protecting the game as a whole by applying the legal rules of electronic works is conducive to achieving full and substantial protection of online game copyrights.
(3) Game rules are protected by the "Anti-Unfair Competition Law"
When the game rules cannot be protected by the "Copyright Law", the plaintiff can seek protection by the "Anti-Unfair Competition Law". The trial and adjudication of game rules unfair competition disputes does not extend the scope of copyright protection, but comprehensively considers the legitimacy of the accused behavior based on other legal values and goals [14].
In the case of copyright infringement disputes and unfair competition disputes involving Guangzhou NetEase Computer System Co., Ltd., Shenzhen MiniWan Technology Co., Ltd., and Shanghai NetEase World Network Technology Co., Ltd.[15], the court first determined that "Mini World" had plagiarized the gameplay rules of "Minecraft" as a whole.Secondly, the court analyzed and determined whether the defendant violated the Anti-Unfair Competition Law from the following five aspects:
In summary, the court determined that the defendant’s plagiarism of the plaintiff’s game rules was contrary to the principle of good faith and business ethics, disrupted the order of competition in the game market, damaged the legitimate rights and interests of NetEase, and constituted unfair competition as stipulated in Article 2 of the Anti-Unfair Competition Law.
3. Infringement determination rules for the overall protection model of online games
In the overall protection model of online games, when judging the substantial similarity in infringement, the courts have different views on the infringement comparison rules. Let us take a look.
(1) Element comparison + overall perception
in the case of copyright infringement disputes and unfair competition disputes between Suzhou Xianfeng Network Technology Co., Ltd. and Shanghai Kaiying Network Technology Co., Ltd. and Zhejiang Shenghe Network Technology Co., Ltd. [1 6], the court held that to determine whether a later game substantially utilizes the original expression of an earlier game, should first determine whether the specific presentation methods of individual subsystems of the two constitute the same or substantially similar, and then look at whether the selection, arrangement, and combination of individual subsystems in the overall game architecture are substantially similar.
For example:
As another example, in the copyright infringement dispute case between Suzhou Snail Digital Technology Co., Ltd. and Beijing iQiyi Technology Co., Ltd. and Chengdu Tianxiang Interactive Technology Co., Ltd. [17], the court held that both ARPG mobile games involved in the case had complex structures. For large and complex gameplay systems, to determine whether the subsequent game substantially utilizes the overall expression of the previous game gameplay rules, the gameplay rule system should be compared as a whole. first determines whether the specific presentation method of a single gameplay system is the same or substantially similar, and then looks at whether the overall selection, arrangement, and combination of individual gameplay systems in the overall game architecture are substantially similar to . When making an overall judgment, not only should the number of individual gameplay systems that are substantially similar be considered, but should also consider factors such as the degree of impact of different gameplay systems on the game enjoyment experience and whether they are key points of game design, game profit points, etc. to comprehensively judge .
For another example, in the case of copyright ownership disputes and copyright infringement disputes between Shanghai Feihu Network Technology Co., Ltd. and Shenzhen Xiazhigu Technology Co., Ltd., Guangzhou Baiji Network Technology Co., Ltd., and Horgos Xiazhigu Information Technology Co., Ltd. [18], the court held that if various game rules and game plots are combined with each other, the game will be promoted The storyline continues to develop, showing specific character relationships, main task lines, scene transition sequences, game effects, etc., and the plot is rich and detailed enough, with complete personalized expression. Then this organic combination of character settings, main task lines, plot structure, and game effects that are sufficiently specific to form a whole should be protected when it meets the expressions of copyright law. What
protects at this time is not the game rules themselves, but the content represented by a series of game rules that are integrated and arranged and combined with the elements of the game resource library. If the accused infringing work contains the same or similar content, and reaches a certain amount and proportion, which is enough for ordinary observers to perceive that it comes from a specific work, it can be determined that the two works are substantially similar .
(2) Element comparison
In the case of copyright infringement disputes and unfair competition disputes between Guangzhou Weidong Network Technology Co., Ltd., Guangzhou Shuoxing Information Technology Co., Ltd. and Shanghai Zhuangyou Information Technology Co., Ltd. [19], the court held that htm The continuous active screen of l4 online games changes with scene angles, character actions, etc. Elements such as game maps, level settings, character skills, weapons and equipment, monsters, and NPCs are the basic fixed elements of role-playing online games. The similarity of these elements can determine the similarity of the overall screen of the online game . After comparison, all the skills of the top 400 characters of the two games, swordsmen, magicians, and archers, are the same or basically the same as some of the skills in Game of Thrones. The level settings, character names and skills, map scenes, weapons and equipment, monsters, and NPCs are all basically the same, which is enough to determine that the overall graphics of the two games are substantially similar.
(3) Judgment based on the overall audio-visual expression of the game
If the game elements are similar, it cannot be directly inferred that the overall audio-visual picture of the game constitutes substantial similarity. The judgment must be based on the overall audio-visual expression of the game.
For example, in the case of copyright infringement disputes and unfair competition disputes involving Guangzhou NetEase Computer Systems Co., Ltd., Shenzhen MiniWan Technology Co., Ltd., and Shanghai NetEase World Network Technology Co., Ltd.[20], the court held that when game developers design game resources or elements according to the same gameplay rules, they can form different expressions. There are many game elements and their combinations in the two games that have the same and similar designs, but the screen expressions are quite different.
determines whether the audio-visual pictures are substantially similar in composition, and should focus on the audio-visual expression of the game to determine whether the overall game picture is substantially similar to .
In addition, a large number of game resources/elements in the two games are quite different in terms of flat icons, modeling styles, and animation effects. They are only slightly similar. However, the two games are basically designed with reference to the images and movements of corresponding objects, animals and plants in reality, and each has its own original audio-visual expression. In the two games, there are separate operation interfaces for the toolbox/workbench, smelting furnace/furnace, fusion enchantment box/enchantment table, repair bench/anvil, etc. Although there are similarities in the synthesis, smelting, enchantment or repair processes shown, there are major differences in the art images and animation effects. Taken together, the overall graphics of the two games are not substantially similar.
4. Conclusion
In summary, it can be seen from the above cases that among the protection modes of online games, there are mainly the overall protection mode and the individual protection mode of various elements. However, most courts now tend to adopt the overall protection mode to protect online games.
In the infringement determination of plagiarism of online game rules, protection of whether game rules can constitute expression requires case-by-case determination. In the case of Blizzard Entertainment Co., Ltd.'s "Overwatch" being plagiarized, the court discussed in detail the abstract and concrete expressions of the game rules from the five levels of the game rules, which provided a lot of inspiration for subsequent judicial decisions.
When comparing the overall protection model of online games for substantial similarity in infringement, most courts still adopt a combination of "element comparison + overall perception" to determine substantial similarity.
This article introduces the topic and analyzes the infringement determination rules of relevant online games from judicial cases, hoping to be helpful to enterprises in the process of safeguarding rights in games, and to colleagues in handling related cases.
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【1】(2021) Guangdong Minzhong No. 1035
【2】(2016) Shanghai 73 Minzhong No. 190
【3】(2016) Shanghai 73 Minzhong No. 190
【4】(2021) Guangdong Minzhong 1 No. 035
[5] (2014) Shanghai No. 1 Middle School Minwu (Zhi) Chuzi No. 23
[6] (2015) Yu Wu Middle School Fa Minchu No. 46
[7] (2015) Yu Wu Middle School Fa Minchu No. 46
[8] (2020) Shanghai 73 Minzhong No. 33
[9] (2020) Shanghai 73 Minzhong No. 33
[10] (2017) Shanghai 0115 Minchu No. 77945
[11] (2021) Guangdong Minzhong No. 1035
[12] (2019) Zhejiang Minzhong No. 709
[13] (2019) Zhejiang Minzhong No. 709
[14] (2021) Guangdong Minzhong No. 1035
[15] (2021) Guangdong Minzhong No. 1035
[1 6] (2019) Zhe Minzhong No. 709
[17] (2015) Su Zhong Zhimin Chuzi No. 201
[18] (2018) Guangdong 0192 Minchu No. 1
[19] (2016) Shanghai 73 Minzhong No. 190
[20] (2021) Guangdong Minzhong No. 1035
Author: Zhu Weijie
Editor: Sharon
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