Chinese Practice in the Copyright Protection of Video Games: An Attempt Under the Element Splitting Approach

Yanbing Xu; Chuyu Wan

doi:10.6918/IJOSSER.202505_8(5).0052

Authors

Yanbing Xu
Chuyu Wan

DOI:

https://doi.org/10.6918/IJOSSER.202505_8(5).0052

Keywords:

Video Game, Element Splitting, Chinese Practice.

Abstract

At present, China’s legislative process concerning video games lags significantly behind the rapid development of the gaming industry. Before the amendment to the Copyright Law on June 2021, the regulations on types of works are specified through a closed enumeration method. Video games didn’t fit any category and had no residual provision. In that premise, element splitting was the most efficient protection approach. This paper will analyze the current legislative situation, mainly focusing on the change of judicial approach in China’s video game copyright protection and put forward suggestions.

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References

[1] For example, the Guangdong Higher People's Court's Guidelines for the Trial of Civil Disputes Involving Intellectual Property Rights in Online Games (Trial Implementation) released in April 2020; the Ministry of Culture's Interim Measures for the Administration of Online Games' implemented in August 2010 (this regulation was abolished in July 2019); the Notice on Improving and Strengthening the Management of Online Game Content' issued by the Ministry of Culture in 2009; and the Notice on Strengthening the Management of Virtual Currency in Online Games' jointly issued by the Ministry of Culture and the Ministry of Commerce in 2009.

[2] Article 3 of Copyright Law of China: For purposes of this Law, the term “works” means intellectual achievements in the fields of literature, art and science, which are original and can be expressed in a certain form, including: (1) written works; (2) oral works; (3) musical, dramatic, quyi, choreographic and acrobatic art works; (4) works of the fine arts and architecture; (5) photographic works; (6) audiovisual works; (7) graphic works such as drawings of engineering designs, product designs, maps and sketches, and model works; (8) computer software; (9) and other intellectual achievements conforming to the characteristics of the works.

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[4] After the third revision of China's Copyright Law, the concept of “cinematographic works and works created by a process analogous to cinematography” from the 2010 Copyright Law was absorbed into the current Copyright Law as “audiovisual works”. Cases that occurred before the current Copyright Law took effect in June 2021 still followed the original provisions, recognizing the entire dynamic images of video games as cinematographic works. However, subsequent cases have classified them as “audiovisual works”. Therefore, this article uses the term “audiovisual works/cinematographic works”.

[5] Shanghai First Intermediate People's Court, (2014) Hu No. 1 Min Wu (Zhi) Initial Civil Case No. 23.

[6] Shanghai First Intermediate People's Court, (2014) Hu No. 1 Min Wu (Zhi) Initial Civil Case No. 23, Page 13.

[7] Article 4 of the Implementing Regulations of the Copyright Law.

[8] The “Green Halo Animation” is a dynamic effect that displays a green halo around the card's border, indicating that it can be used for an immediate attack in the game.

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[10] In Article 3 of the Copyright Law of China, which was promulgated on November 11, 2020, and implemented on June 1, 2021, “audiovisual works” replaced the phrase “cinematic works and works created by a process analogous to cinematography.” However, since the case occurred under the provisions of the copyright law that took effect in 2010, the court's judgment followed the then-existing copyright law, classifying it as “works created by a process analogous to cinematography”.

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[16] First-person shooter games (FPS) also feature continuous visuals, but unlike role-playing games (RPG), FPS games typically lack rich storylines. The extensive continuous visuals are not pre-set; instead, they are dynamically created by multiple players following game rules through their individual actions.

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[19] Putuo District People's Court of Shanghai, (2017) Hu 0107 Min Initial No.27752.

[20] (2020) Hu 73 Min Final No. 33.

[21] Tao Kaiyuan and the Civil Division III of the Supreme People's Court, 'Intellectual Property Case Guidance' 2017, Volume 1 (Total Volume 29), People's Court Press, pages 162-164.