January 12, 2022

【Reprint】

Analysis of the Attribution and Recognition of Online Game Image Works under the New Copyright Law

Author: Shanghai Hansheng Law Office
Senior Partner: Attorney Luo Hao
Attorney Liu Zongren

Before the new Copyright Law officially came into effect in 2021, after extensive research and discussion in the academic circle and the explorations of courts and lawyers at all levels in judicial practice, all parties have reached a preliminary consensus that the online game images constitute film-like works in the sense of Copyright Law，the relevant right holders are finally free from the dilemma of being forced to split a complete game image into art works, written works, musical works, film works, computer software and other specific works in the sense of Copyright Law to claim protection separately in the past. However, even from the case of copyright infringement and unfair competition brought by ‘Miracle MU ’against ‘Miracle Myth’ in 2015, it was only six years before the court accepted online game images as a kind of film-like works. During this period, limited by the theoretical development and the relative lack of influential precedents, there are still many pending problems in the work attributes of online game images, for example, whether online games with no plot or weak plot can constitute film-like works, and whether match or card online games can constitute film-like works, etc. After the new Copyright Law cames into effect in 2021, as the film-like works is completely replaced by audiovisual works in the law, and the new Copyright Law adds a new clause of “other intellectual achievements that meet the characteristics of a work” under the type of work, breaking the limitation of the Copyright Law of 2010 that requires works to be clearly attributed to the types of works explicitly listed in the Copyright Law of 2010 and other laws and regulations in order to obtain protection. The characterization of online game images thus adds another question of how to interface between the old and new laws, and whether it should continue to be classified as an audiovisual work for protection under the Copyright Law of 2021.

I、The scope of audiovisual works is consistent with film and film-like works

Under the new law, the category of film and film-like works is replaced by audiovisual works, which in turn are divided into two categories: film and television works and other audiovisual works. Given that a detailed definition of audiovisual works is not yet available, this division raises two questions: firstly, whether this change is a mere name substitution or an expansion of the scope of works based on the original film and film-like works, secondly, film-like works should be classified under which category under the new law. Both ‘film and film-like works’ and ‘audiovisual works’ are loanwords, ‘film and film-like works’ is from the Berne Convention signed in 1948, and ‘audiovisual works’ is from the Treaty on the International Registration of Audiovisual Works concluded in 1989, China has now acceded to both treaties. According to the latter convention, ‘audiovisual work’ is defined as ‘any work consisting of a series of related recorded images, with or without accompaniment, that can be perceived visually and, when accompanied, audibly.’ The Guide to Copyright and Related Rights Treaties administered by WIPO and Glossary of Copyright and Related Rights prepared by WIPO states that: ‘‘Audiovisual works’ is a more concise synonym for the non-exhaustive list of literary and artistic works in Article 2(1) of the Berne Convention, ‘film works and works expressed by means similar to those used for the filming of films’.’ Therefore, Professor Wang Qian thinks that, the scope of “audiovisual works” is actually the same as that of ‘film and film-like works’, and the use of audiovisual works instead of film and film-like works is mainly for the sake of terminological simplification. [1]

It is clear that, according to the above view, the connotation and scope of audiovisual works under the Copyright Law of 2021 are identical to those of film and film-like works under the Copyright Law of 2010. Therefore, online games that constituted film-like works under the 2010 Copyright Law will be protected as ‘audiovisual works’ under the new Copyright Law. Professor Wang Qian also pointed out that since movies and TV dramas have clear objects, online games should be classified as ‘other audiovisual works’.[2]

2、The whole online game images constitute audiovisual work

Classifying online game images as audiovisual works may be one of the best options to ensure a smooth logical connection between the old and new Copyright Law，however, as mentioned at the beginning of this article, the attribution and identification of the online game images has been accompanied by many problems. While the Copyright Law of 2021, on the other hand, creates a new miscellaneous provisions of “other intellectual works that conform to the characteristics of a work” under many statutory types of works，to a certain extent, it tears open that works must belong to a specific genre explicitly established by laws and regulations, and seems to provide another possibility for the work attribute of online game images.

The two lawyers, Wang Zhan and Jiang Zhe, pointed out that no matter how the images show, there is tremendous difference between the expression means and creation process of film and film-like works and the online game images. The means of expression of the film is the shot, the shot is a unit of film shot at one time, compared with a number of pictures played continuously, the shot presents a continuous change of time and space. The process of creating a film is to shoot a large number of shots from different angles, with different techniques and in different scenes according to the script, and to edit and piece together the relevant shots to form a complete film according to a certain logical relationship in post. [3]

On the other hand, the means of expression of online games are scene screen and operation interface, the former is a series of images formed by the player through controlling the character to move and fight on the game map, The latter is a screen that explains the rules of play and the effects of props. The creation process of online games is divided into three main areas: planning, artwork, and programming. The planning process has completed the character development mechanism, the replica system, the equipment and prop system, and the combat system design to build the ‘skeleton’ for the game. The artwork process is to complete character, prop and scene design to fill the game with ‘flesh and blood’；The programming designs the data resources that players can retrieve for each command through code preparation, and connects the ‘tendons’ for the game. [4]

The two lawyers believe that, after comparing the means of expression, creative process and artistic level of film works and online game works, there is a huge difference between film and film-like works and online game images. Under the Copyright Law of 2021, it is most appropriate to protect online game images as “other intellectual achievements that meet the characteristics of a work” in Article 9. [5]

In the author’s opinion, Lawyer Wang and Lawyer Jiang have a very deep understanding and insight into the essence of online games and movies, and their discussion of the creation process and respective characteristics of the two kinds of works is insightful. However, the classification of works by means of expression and creative process alone is not in line with the long-standing judicial practice. In their rulings, the relevant courts basically adopted a technology-neutral view, holding that the technical means of creating game images, including ‘filming on certain media’ as stipulated in the Regulations for the Implementation of the Copyright Law, are not the constitutive elements of film-like works. [6] The legislation and judicial practice of various countries also attach more importance to the visual performance effect, and less to the way of production. No matter the difference between lens and ‘scene screen’, ‘operation interface’, or the difference between the creation process of film and online game, it is from the technical point of view to distinguish online game and film works. This division denies the consensus of judicial practice in the past few years, and will also bring great confusion and uncertainty to relevant practitioners.

The author believes that, in general, we shall follow the past idea, protecting online game images as audiovisual works.

3、Different online game images should be distinguished by the presence or absence of time and space shifts

However, if the past adjudication ideas are completely followed, it means that a series of judicial difficulties accumulated previously for various reasons remain unresolved. For example, do online game images have to have a storyline in order to constitute a film-like work (audiovisual work)? On the one hand, the Shanghai Pudong New Area Court held that ‘the absence of a predetermined storyline in certain scenic or documentary works does not prevent them from being recognized as film or film-like works’;on the other hand, the Guangzhou Intellectual Property Court noted that “Capture the Fish …… does not have a specific game character or game storyline and lacks the core elements of a work created by a method similar to filming a movie in general”.

Taking screen continuity as another example, in the case of King of Fighters v. Digital Adventure, the Shanghai Intellectual Property Court held that ‘The King of Fighters game is a card fighting game …… card game in the running process usually presents a number of non-continuous static screen …… most of the screen are mainly presented with static screen content, and with the player’s operation behavior to achieve different static screen changes and switching……most of the game screens do not have continuity between them and do not show the perception that the characters or things in the screen are in motion’. Therefore, not all continuous images can constitute a film-like work, but, again, there is no clear standard for distinguishing between continuous images that can constitute a film-like work and continuous images that cannot constitute a film-like work.

The above two problems are only two of the more representative problems arising from the unclear standard of works in practice, and there are many similar problems, including problems like card games belong to what kind of works, moba class games belong to what kind of works and so on and so forth. Therefore, some practitioners point out that the protection of online game images by ‘film-like works’ is only a stopgap measure. [7] In terms of the reality of the online game industry, the product types of “online games” include role-playing (RPG), sports (SPT), strategy (SLG), action (ACT), etc.Different categories of games are so different and integrated in terms of rules, visuals, system design, and so on. Therefore, the attempt to protect all online game images in a certain category of works in one fell swoop may not be in line with the reality of the online game industry, and is the cause of many problems in practice. It is perhaps more realistic and feasible to protect different online game images differently.

Then what criteria should be used to distinguish online game images and give different types of copyright protection accordingly? The author suggests referring to some extent of the ideas of Wang Zhan and Jiang Zhe, two lawyers, that film images are not just simple continuous images, but continuous images that present the shifting of time and space in the film world. Therefore, the author believes that different online game images can be distinguished by the criterion of ‘whether the screen presents the changes of time and space in the game world’. At the time level, the game needs to have some design, such as constant changes in levels, points, equipment, character images, etc. to reflect the passage of time in the system; at the spatial level, it is necessary to reflect the change of space through the constant change of the surrounding scene. Online game images capable of expressing time and space changes, in line with the general performance characteristics of the film screen, should be regarded as ‘other audiovisual works’ under audiovisual works; and online game images that cannot show such characteristics of temporal and spatial changes are generally not suitable to be considered as works in the sense of Copyright Law. However, if some elements, such as music and copywriting, do meet the criteria of works, they can be protected separately or as ‘other intellectual achievements that meet the characteristics of works’.

The advantage of this classification is that it can solve many of the confusions that have arisen in practice while ensuring that it is compatible with past jurisprudence. In the case of plot, for example, the ‘time and space shift’ criterion completely eliminates the requirement for a storyline, and is different from the reasoning of the Guangzhou Intellectual Property Court’s decision in Guangzhou Dong Xiang v. Guangzhou Zhuo Meng (‘Capture the Fish’ case) and the Shanghai Intellectual Property Court’s decision in King of Fighters v. Digital Adventure, which emphasized the need for a storyline for film-like works (audiovisual works). However, both King of Fighters and Digital Adventure are card games, while Capture the Fish is a game where players manipulate weapons to attack moving fish targets in the same fixed interface. All three games are constant repetition of the same elements under a fixed interface, and the space in the game world is not perceived to be changing from the general audience’s perspective, so they cannot constitute audiovisual works, which is not materially different from the court’s decision. Similarly, in moba games (such as ‘Glory of Kings’) and first-person shooter game (such as ‘Overwatch’), as players continue to operate, the scene is constantly changing, and characters are constantly being defeated and resurrected, which can clearly show the temporal and spatial changes within the game world,  and can constitute an audiovisual work, and these results are also consistent with general perceptions and past jurisprudence. At the same time, this standard further improves the requirements for picture continuity and is closer to the essence of the film or audiovisual work.

Conclusion

The new Copyright Law has revised the types of works, firstly, replacing the former ‘film works and works created by methods similar to the filming of films’ with ‘audiovisual works’, and secondly, replacing the miscellaneous clause ‘other works prescribed by laws and administrative regulations’ with ‘other intellectual achievements that meet the characteristics of works’. If the former does not change the scope of film and film-like works, the latter gives more flexibility and space to the identification of the genre of works.

Specifically, with regards to the work attributes of online game images, the past way of discussing all types of games under the concept of online game is no longer suitable for the current industry reality of many game types and extremely rich game platforms. The great differences between different game images should be correctly understood and treated differently, recognizing that different types of game images may belong to different works. Based on this knowledge, the author suggest that the standard of ‘whether the screen presents the changes of time and space in the game world’ should be used to classify different online game images, and online game images that meet this standard should be treated as audiovisual works, while those that do not meet this standard are generally not suitable to be protected as works, however, if the condition of ‘conforming to the characteristics of a work’ is satisfied in other aspects, the work can be protected as a musical or artistic work or ‘other intellectual achievement’.

Appendix

[1]Wang Qian. Analysis on the Scope and Ownership of Audio-visual Works [J]. The Chinese and foreign law.2021（33）
[2] Same as above
[3]Wang Zhan，Jiang Zhe. Judicial Inquiry into the Types of Online Game Works in the Context of the New Copyright Law [EB/OL]. https://mp.weixin.qq.com/s/yDIaJdGJWVULmZB9FyY5jg
[4] Same as above
[5] Same as above
[6]（2015）Pu Civil Three (Intellectual)Chu Zi No.529
[7]Zhang Lingna. Copyright protection path for live online game images （Previous）[EB/OL]. https://mp.weixin.qq.com/s/m9QhQhyvs8bXSfju8RAT4Q