2016 and 2017 are destined to be milestones in video game copyright protection in China judicial practice. In these two years, we have first seen an explicit and unified copyright definition over video game screens, namely the series of images preinstalled in the game program and displayed during game control. So, what is that definition, and why it is so important for the judicial practice and the video game industry in China? The author will make a preliminary analysis from past cases.
Defect in previous practice
Video games, including computer games, TV games and mobile games, are a complicated combination of various elements that at least includes pictures (figures and scene designs), cartoons, sound effects, dubbing, music and computer programs.
Once the above-mentioned elements are deemed “original”, they can respectively be categorized as the following copyright works:
- Fine art works: pictures (figures, scenes);
- Cinematographic works: cartoons;
- Musical works: sound effects, music;
- Oral works: dubbing; and
- Computer software works: video programs.
Previous judicial practice looked at which aspects, or which works, could complete the definition of the video game in the copyright law.
Then we saw different propositions in the same types of video game infringement lawsuits, including targeting against fine art works, musical works, cinematographic works, oral works, computer software works, or against all of these works. The above proposition may mean that the rights owner is only protected in one “corner” of the entire works. For example, if fine art works was selected, then the rest of the elements like music, cartoons and computer programs would not be protected. So, how is it possible to protect the value, and the lawful rights contained in other parts?
Some plaintiffs argued that a video game infringement is against all the works involved, but that brings with it a heavy burden to prove copyright ownership. Moreover, the similarity of proof between the rightful works and the claimed infringing works is also a necessary part of a copyright lawsuit. Once the plaintiff proposed various works in the lawsuit, it would have to make dozens of similarities and comparisons among them.
Even combining all the works together would not completely manifest the nature of game works, including its integrity, interaction, etc. Why choose cinematographic works to define a video game? The first legal case to decide that video games in whole could be taken as cinematographic works is the case of “MU”, judged by the Shanghai Pudong People’s Court in 2016. Then, in 2017, we saw more similar cases following the opinion of the MU case.
So, why did the judges choose cinematographic works as the one to define video games in copyright law? Let’s first take a look at the definition in the copyright law of cinematographic works: “Works which, being recorded on some material, consist of a series of frames of images, with or without accompanying sound, that can be projected with the aid of suitable devices, in relation to a specific works.”
The key concept of cinematographic works is: 1) recorded on some material; 2) consisting of a series of related images; and 3) projected with the aid of devices. It is easy to find video games that meets all the above key concepts. And in the meantime, no other defined concept could be more like the features of a video game.
Let’s take another look at what could happen since the works were defined. First, the author or rights owner’s proof would be much easier; just as the film only belongs to the manufacturer, the game’s rights is in the hands of its developer. Second, the burden of similarity proof would be lighter. And third, the true social value of the video game could be reflected.
Despite the current progress, copyright analysis regarding the nature of video games remains unfinished.
The preinstalled screen has already been taken as cinematographic works, and yet the interaction of the video game is quite different from film, even if the two things do not share much similarity.
Besides, defining the screen that is under the player’s control is still open for debate. Is it the screen of the game itself, or a new works only using one element of the game? Could the player be the author and therefore protect the electronic sports industry? The author looks forward to more cases contributing to a clearer expression of the law.
Albert Chen is a partner and attorney-at-law with Boss & Young
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