YY Live was awarded an indemnity of 20 million. Should the infringer of the game live broadcast be the anchor or the platform?

if the game live broadcast infringes upon the copyright of the game work, then the infringer is the game live broadcast anchor? Or a live broadcast platform?

will live games or live games infringe upon the copyright of game works?

A few days ago, the Guangzhou intellectual property Court issued a judgment of first instance on the copyright infringement case of Guangzhou NetEase computer Systems Co., Ltd. (hereinafter referred to as NetEase Co., Ltd.) against Guangzhou Huaduo Network Technology Co., Ltd. (hereinafter YY Live or YY), and ordered the defendant to stop spreading the game pictures of "Fantasy Journey to the West" or "Fantasy Journey to the West 2" through the Internet, and compensate the plaintiff for economic losses of 20 million yuan.

as the first infringement case of domestic game live broadcast, as soon as the verdict was announced, it aroused widespread heated discussion.

< strong > there are three focal points of controversy: < / strong >

first, how to define the legal attribute of game live broadcasting? Second, under what circumstances will live games infringe upon the copyright of the game itself? Third, if the game live broadcast infringes upon the copyright of the game work, then the infringer is the game live broadcast anchor? Or a live broadcast platform?

< strong > NetEase complains that YY Live infringes its copyright. YY Live argues that it is the fair use of < / strong >

NetEase claims that the electronic games involved are computer software works, the characters, scenes and props presented in the running process of the game are works of art, and the music in the course of the game belongs to musical works. the plot design, interpretation and activity plan of the game belong to written works, and the continuous pictures presented in the running process of the game belong to works created by similar film-making methods, and the defendant steals its original results. To the detriment of his legal rights.

YY argues that NetEase is not the owner of the right, and that the live screen of the video game involved in the case is immediately manipulated by the player during the game and is not any type of work stipulated in the copyright law; and the live game is a way of personal learning, research and appreciation in the online environment, which belongs to the individual's fair use behavior in the copyright law.

the Guangzhou intellectual property Court of first instance held that YY's setting up a live broadcast window on its network platform and organizing anchors to broadcast live video games involved in the case infringed upon NetEase's copyright in his game pictures as a kind of film works, and ruled that the defendant stopped infringing and compensated for losses in accordance with the law. Stop infringement specifically to stop the dissemination of video games "Dream Journey to the West" or "Fantasy Journey to the West 2" through the information network.

< strong > definition of the legal nature of game live streaming: game record? Or independent work? < / strong >

Game LVB takes the form of live video chat while displaying video games.

in accordance with the provisions of the copyright Law, the live video of the game itself belongs to the "work created by the method of film production", and the live video of the game itself is actually recorded in the process of the creation of such works.

to put it simply, the live video of the game itself is also a work and should also be protected by copyright law.

in accordance with Article 15 of the copyright Law, the copyright of a work created in a manner similar to that of film production shall be enjoyed by the producer.

among them, only the "continuous picture of the game running process" that may be used in the live video of the game is similar to the "propositional composition". The game manufacturer limits the form or scope of expression through the game product or logical design, but the continuous screen formed by each player in the process of manipulating the game is often different, which can easily reflect the original elements of the player.

although this kind of work is mainly based on the game provided by the game manufacturer and is close to the job-related work, because there is no labor relationship between the player and the game manufacturer, it is more appropriate for this kind of continuous picture to be regarded as a "cooperative work". The copyright of the work should be jointly owned by the game manufacturer and the player.

< strong > is the game live broadcast an infringement of the copyright of game works? < / strong >

in accordance with Article 22 of the copyright Law," in order to introduce or comment on a work or illustrate a problem, properly citing a published work of another person in a work may not be approved or paid by the copyright owner, but the name of the author and the name of the work shall be specified. " And shall not infringe upon other rights enjoyed by the copyright owner in accordance with this Law.

therefore, if the display of the game screen by the game LVB work can be determined to be "to introduce, comment on a work or explain a problem", then the use of the game screen by the game live broadcast belongs to fair use.

so, is the game LVB behavior fair to use?

the essence of the fair use system is that in the process of creating a new work, it is inevitable to use some fragments or contents of other works, and the use itself is in good faith and will not infringe upon the legitimate rights and interests of the copyright owner of the original work. Including personal or property rights and interests.

in the process of game live broadcasting, the viewer has a comprehensive perception of game manipulation and interpretation behavior, which is similar to watching the live broadcast of the game. Experience the operator's skills, skills, play and game VJ's voice chat or commentary content.

for the game itself, its business model or revenue source does not come from the transfer or sale of copyright, but from the sale of props, game time, and so on. For the game live broadcast behavior, it does not have any negative impact on the core business model of the game, on the contrary, it will attract more users or potential users to invest in the game.

to put it simply, game manufacturers were originally the biggest beneficiaries of game live streaming, because it helped game manufacturers gather a large number of loyal users. Therefore, the game live broadcast of the use of game pictures, is legitimate, well-intentioned and reasonable.

< strong > logical reflection of the referee: even if the game live broadcast infringes, the infringer finds it inappropriate to belong to the platform < / strong >

if the exclusive right of creators to permit or disapprove the dissemination of their works is not protected, it is not conducive to stimulating the rights of developers, thus promoting the production of intelligent products in the whole society. It is not in line with the legislative purpose of the copyright Law to "encourage the creation of works beneficial to the construction of socialist spiritual and material civilization".

"Fantasy Journey to the West" and "Fantasy Journey to the West 2" as an online game, the core content includes the game engine and the game resource library, which expresses the creator's ideological personality and can be copied in a tangible form. this creative process is similar to the method of "filming", so the continuous pictures presented by the electronic games involved in the case running on the terminal equipment can be identified as film-like works. The "producer" of the work should belong to the right holder of the game software.

on the one hand, the continuous pictures in the game are identified as "movie-like works", and it is presumed that the right holders are only worthy of discussion for the game manufacturers, on the other hand, the game manufacturers, as beneficiaries, do not suffer any substantial losses. requiring the live broadcast platform to bear tort liability or compensation obligations is also not in line with the principle of priority of damages.

in accordance with the provisions of Article 49 of the copyright Law, if the copyright or copyright-related rights are infringed, the infringer shall pay compensation according to the actual loss of the right holder; if the actual loss is difficult to calculate, compensation may be paid according to the illegal gains of the infringer. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement.

to put it simply, the first principle of copyright infringement compensation is to pay compensation according to the actual losses. in the game live broadcast, on the one hand, it does not cause losses to the game manufacturers, on the other hand, it is also difficult for game manufacturers to prove that the number of users or paying users is reduced because of the game live broadcast.

therefore, the basis for the judgment of 20 million of compensation in the first instance appears to be insufficient. In addition, in the process of game live broadcasting, the live broadcast platform only provides live broadcast tools or technology. if the game live broadcast is found to constitute an infringement, the direct infringer is not the live broadcast platform, and the live broadcast platform shall only be jointly and severally liable for the increased losses.

of course, the original intention of the first instance judgment to protect the original is worthy of our affirmation, but it should not be protected for the sake of protection, but should return to the game live broadcast behavior itself. a comprehensive analysis of whether this behavior infringes upon the copyright of game works, or is an inevitable fair use, and this is the key worthy of further discussion.

Edit: mary