After nearly two decades of development, the online game industry has become an important field in the development of my country’s pan-entertainment industry. With the advent of the 5G era, frontier markets such as cloud games and AR/VR games are also ushering in new opportunities for rapid growth, and the entire game industry will undergo a new round of changes. This poses new problems and challenges to the protection of intellectual property rights of online games in our country, and arouses the common concern and discussion of academic and practical circles.
On September 12, the Institute of Intellectual Property and Competition Law of Shanghai Jiaotong University held a seminar on the protection of intellectual property rights in online games and the release of the “White Paper on the Protection of Intellectual Property Rights in Online Games” (hereinafter referred to as the “White Paper”). The conference brought together experts from all sectors of the industry, including industry practitioners and researchers, to conduct in-depth discussions and research on hot issues such as legal protection of online game rules, legal liability for online game infringement, and protection of cloud game rights.
Professor Kong Xiangjun, Dean of Kaiyuan Law School of Shanghai Jiaotong University, said in his speech that online games involve many aspects, including trademarks, patents, copyrights, and unfair competition, and they are a cross-cutting field. The rapid development of formats, business models, and technologies in the field of online games has triggered many legal issues. The legal issues involved are directly related to the technical business model, and the development of technology and business models is an important force to promote legal development.
This “White Paper” was jointly launched by the Online Game Copyright Work Committee of the China Copyright Association and the Institute of Intellectual Property and Competition Law of Shanghai Jiaotong University. Based on in-depth research on the protection of intellectual property rights in China’s online game industry, combined with a large number of typical judicial cases, In-depth research and demonstration of related hot legal issues such as the game’s work attributes and rights, the rational use of game screens by game live/short video, and relevant solutions have been proposed, which provides an important reference for the protection of intellectual property rights of online games in China And theoretical and practical support.
Short video and live broadcast platforms gradually merge, MCN institutions need to clarify copyright rules
With the development of the Internet market economy, games as the core content are driving the digital entertainment industry such as e-sports, game live broadcast, and short video to accelerate.
According to the “2020 China Social Entertainment Video Research Report” released by iResearch in June 2020, the current social entertainment video combined with live broadcast and short video content relies on the complementary advantages of the two content formats. The characteristics of socialization and interactive content, as well as a large and diverse content library reserve, have become an important video entertainment method for netizens.
In 2016, mobile short video platforms represented by Kuaishou, Douyin, and Miaopai emerged. The major Internet giants have comprehensively deployed the short video field. A large number of mobile short video applications have appeared intensively. The number of short video apps has shown explosive growth. At the same time, The short video content producer team has also grown rapidly under the impetus of the platform. What coincides with the rich content of the live broadcast platform is that the short video platform has also added a live broadcast function to its products to further improve its entire social entertainment video ecosystem.
Online game live broadcasts, short videos, and long videos have become one of the fastest-growing cultural and entertainment industries in China. Therefore, the use of continuous dynamic images of online games without the authorization of game developers constitutes a conclusion of reasonable use, which is beneficial to the market. The pattern has a major impact.
The “White Paper” analyzes that game live broadcasts do not constitute fair use. At the same time, it points out that due to the physical homogeneity of game live broadcasts, short and long videos cannot constitute fair use either. Similarly, when a game live broadcast platform or a game short video platform directly acts as a content provider, the act of publicly recruiting anchors and opening a window in the platform to upload game content to obtain commercial benefits cannot be considered as fair use, but involves direct infringement. Responsibility.
Guo Chengjie, Director of the Interactive Entertainment Vertical Research Department of iResearch Group, said, “The social entertainment video industry that integrates live broadcasts and short videos is becoming more mature. Its content themes include both game content and other content. In the future, the integration will produce more More industry innovations will also bring more intellectual property protection issues that need to be discussed and resolved continuously.”
With the generalization of the integrated product model of live broadcast + short video, the Association/MCN has also begun to cooperate with live broadcast platforms and short video platforms in diversified content production, especially in the game MCN content industry chain. The content of such cooperation is more obvious. The content such as short game videos and game live broadcasts produced by the MCN organization are inseparable from the basic use of game-related elements or continuous dynamic pictures of the game itself.
The “White Paper” pointed out that game MCN organizations play more of the role of content producers in the content industry chain and should apply the basic rules of “authorization-use” copyright. Before using relevant game elements for re-creation and processing, game MCN organizations must obtain prior authorization from the game copyright owner to avoid infringing on the relevant rights and interests of the game copyright owner.
Regarding the legal responsibility of MCN institutions, Liu Yongpei, a teacher at Kaiyuan Law School of Shanghai Jiaotong University, also believes that “MCN institutions are a new business format. It is a complex network with multiple channels, and its institutional responsibility is very important. MCN is essentially a Producers, whether they are doing live games or short videos, the core of their production is to obtain the corresponding game license.”
Directly attack the hot issues of cloud games and protect the legal rights of game owners
With the rapid development of the 5G era, cloud games that improve the gaming experience by reducing player hardware expenditures have become the new focus of the industry. The resulting disputes have also become one of the hot topics discussed.
In the Hangzhou Internet Court’s first case involving 5G cloud games infringing on the right to disseminate information on a work information network and unfair competition disputes, the presiding judge once pointed out that whether cloud game dissemination constitutes information network dissemination infringement should be consistent with the provision of works and the public through information networks. Obtain the two core components of the interactivity of the work. As a new game method based on 5G cloud computing, cloud gaming itself needs to run on a cloud server. At the same time, the rendered game screen or instructions are compressed through 5G technology and transmitted to the user through the network, which is essentially an interactive online video Streaming, when the work is placed on the cloud server for users to click, browse, and run through the cloud game platform of different terminals, the provider of the work constitutes an infringement of the right owner’s right to spread information on the network.
The “White Paper” pointed out that under the cloud game business model, cloud technology service providers still need to abide by my country’s copyright law, anti-unfair competition law and other laws, do their duty of care, and respect and protect the legitimate rights and interests of game owners Next, carry out technological innovation and promote the development of the game industry. If infringement is practiced in the name of technological innovation, it runs counter to the concept of intellectual property protection in the Internet environment in my country, and does not conform to the spirit of competition and innovation advocated by the Internet, and will face the risk of intellectual property infringement and unfair competition.
On the hot legal issues of cloud gaming disputes, Professor Zhang Ping of Peking University Law School believes that “the cloud gaming model is a new mode of communication brought about by the development of 5G technology, and the protection of rights under the cloud gaming model involves both copyright law and anti-unfairness. Competition law and its boundaries are also a new issue in judicial trials.”
Regarding the hot issues in the protection of intellectual property rights of online games, the “White Paper” also made important suggestions on the protection of intellectual property rights of online games from multiple levels. Online games are audio-visual works; from the administrative enforcement level, consider regularly publishing and establishing infringement games and corporate blacklists, smooth complaint channels, and take administrative measures for game infringements in a timely manner; from the judicial level, issue corresponding trial guidelines to unify judicial judgments At the same time, according to the characteristics of the online game industry, consider reducing the cost of litigation rights protection and appropriately increasing the amount of compensation.
With the advent of new technologies, the game market will usher in an opportunity for further growth, and the entire industry will face new changes. Intellectual property protection is an important guarantee for the healthy and orderly development of the online game industry. In the future, with the multi-dimensional and multi-dimensional joint efforts of relevant regulatory agencies, industry organizations, and industry participants, we will further improve and strengthen the construction of the online game intellectual property protection system across the industry chain, drive refined management of the industry, and improve the industry The level of governance has effectively promoted the sustainable and healthy development of my country’s online game industry.
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