Protection of ‘games’ and their component elements

By Lu Lei and Han Yufeng, Run Ming Law Office
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According to the China Games Industry Report, 2015, the China games market had revenues of RMB140.7 billion (US$21.7 billion) in 2015, an increase of 22.9% over the previous year. With this flourishing games market, disputes involving intellectual property have progressively increased.

陆蕾 Lu Lei 润明律师事务所 合伙人 Partner Run Ming Law Office
陆蕾
Lu Lei
润明律师事务所
合伙人
Partner
Run Ming Law Office

For the purposes of this column, the term “games” includes client side games, web games, social network games, mobile games, single player games, console games, etc. that are composed of a software program and information data. A game is essentially computer software, as well as an integral whole composed of images, text, music and animation that involves scenery design, character design, tool design, equipment design, dialogue, introductory text, music, etc. Additionally, the title of a game, the names of its characters, its story, plot, character design, and even its rules, are all organic components of the game. Accordingly, the holder of the rights in a game must comprehensively use various relevant regulations to protect the game as a whole and its component elements by type.

Game software as a whole. Pursuant to the Copyright Law and the Regulations for the Protection of Computer Software, there is no debate that games, as typical computer software, are one of the subjects of copyright protection. However, infringement through simple reproduction has started to diminish, whereas the covert imitation of plot, rules and game play has become increasingly serious.

Elements such as scenery design, character design, tool design, equipment design, dialogue and music. If the above-mentioned component elements of a game are copied, they may be accorded protection under the Copyright Law if they satisfy the requirements of the said law in respect of “works”. For example, character design can be subsumed under “art works” and game explanations can be subsumed under “written works”. Animations may be accorded protection similar to cinematographic works (although this point might be debatable).

In the Guangzhou NetEase Computer System v Beijing Century Hetu Software & Technology et al copyright, trademark and unfair competition case, the court found that, based on the game design, the game software “Fantasy Westward Journey”, developed by NetEase, encompassed the relevant art works and written works, and the author of the game software could also exercise the copyrights independently in the above-mentioned works.

Story, plot and character design. The Copyright Law protects concrete expression, not ideas. However, some game producers have reproduced the story, plot and characters of another’s game and mounted their defence against the rights holder on the grounds that these elements of the game are ideas rather than expression.

In its judgment in the Qiong Yao v Yu Zheng copyright infringement case, the Third Intermediate People’s Court of Beijing Municipality determines that, “If the set-up of the identities of the characters, the relationships among them and the specific correspondence of the characters to specific scenarios attains a sufficiently detailed and concrete level, the character set-up and character relationships give rise to a concrete expression”. In the above-mentioned NetEase case, the court determined that the defendants’ use of the plot design, character relationships, backgrounds, etc. of NetEase’s game constituted identical expression.

Game title and character names. Game titles are one of the major means by which players distinguish games. Some game producers use titles that are identical or similar to those of others’ well-known game titles on their own games so as to cause confusion among consumers. For example, in the Locojoy v Koram Games et al copyright infringement and unfair competition case, Locojoy is the holder of the copyrights in the mobile games “I Am MT online” and “I Am MT 2”; the defendants used a title and characters in their game, “Super MT” that are similar to the title, character names and character images of the above-mentioned game. The court found that Locojoy’s above-mentioned title constituted a title specific to its well-known service in the class of mobile game services and was subject to the protection of the Law Against Unfair Competition.

韩羽枫 Han Yufeng 润明律师事务所 知识产权顾问 IP Counsel Run Ming Law Office
韩羽枫
Han Yufeng
润明律师事务所
知识产权顾问
IP Counsel
Run Ming Law Office

Furthermore, game titles and character names can be protected through the exercise of registered trademark rights. For example, in the Tencent Technology (Shenzhen) v Beijing GameToWin et al trademark infringement dispute case, the court determined that the defendants’ game title “地下城勇士与魔女 (Dungeon Fighter and the Witch)” infringed the rights in the rights holder’s series of “地下城与勇士 (Dungeon and Fighter)” trademarks.

Game rules and playing strategies. Game rules and game play are generally considered the rules of an intellectual activity and fall outside the scope of Patent Law protection. Also, because their abstractness makes them difficult to fix as concrete expression, it is difficult to offer them protection under the Copyright Law. However, under certain specific circumstances, copying another’s game rules can constitute an act of unfair competition.

For example, “Hearthstone” is a game designed and developed by Blizzard Entertainment. “Legend of the Crouching Dragon”, the defendant’s game, uses game rules that are essentially identical to those of “Hearthstone”, including the card rules, such as the number and constitution of cards, card values, use of the cards, etc., as well as the fight rules, such as the turn-based match model, strain injury system, restrictions on the number of followers and number of cards in hand, play sequence, etc. It also comprehensively imitates the game logos, UI, etc.

The court held that large modern online games require the input of vast amounts of manpower, material and funds to develop. If game rules are denied protection without exception on the grounds that they are abstract ideas, this will be adverse to encouraging innovation and the creation of a fair and reasonable competition environment. Accordingly, the court determined that the defendant’s act constituted unfair competition.

Relevant technology

The authors have noticed that certain rights holders have started to apply for patents for game-related technology. Notwithstanding the fact that no specific cases have arisen to date, it can be anticipated that the Patent Law will also become one of the means of comprehensively protecting the intellectual property in games.

Lu Lei is a partner and Han Yufeng is the IP counsel at Run Ming Law Office

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