Video game protection is not child’s play

Under China’s Copyright Law, subject matters receiving its protection are referred to as “works”. Works are intellectual creations with originality in the literary, artistic or scientific domain, insofar as they can be reproduced in a tangible form.

There are in total nine types of works that meet the characteristics of works, including written works, works of fine art, audiovisual works and computer software, as well as other intellectual achievements.

Generally speaking, a video game is the culmination of a wide range of elements including software code, characters, scenes, user interface, voiceovers, soundtracks, plotlines and gameplay mechanics. However, there is no “video game works” specified under the Copyright Law, which means that right owners wishing to protect the copyright of a video game must first clarify the type of works they wish to submit for protection.

Depending on the choice of the type of works, the right holders may need to go through different legal review procedures. The choice could ultimately affect whether legitimate rights can be comprehensively safeguarded.

If opting to pursue the copyright aspect of right protection in video game-related cases, right holders must take great care in choosing the right type, as it will affect the scope of subsequent content comparison with the infringement works. This may ultimately spell the difference between winning and losing.

According to the Trial Guidelines on Civil Dispute Cases Concerning Online Game Intellectual Property Rights released by the High People’s Court of Guangdong province, right holders may claim that the other party has infringed on the rights and interests related to either the overall content of a video game, or only certain parts or elements of the game.

We will now examine the two paths – protecting a game as a whole, and protecting individual elements.

Protection of elements

Under this model, right holders break down a video game into multiple elements, then select the type of the works to be protected based on those elements, as well as the act of infringement.

For example, if the subject matter manifests as written content, such as the title of the game, background information, gameplay illustrations, plotline or dialogue, a claim could be made for the protection of the written works. The rights holders need to explain
how these game elements reflect their personalised choices, selection, arrangement and design, and how they can express certain information in relative comprehensiveness.

If the subject matter concerns the game logo, user interface, character portrait, scenes, maps or other aesthetic works of art formed by lines, colour or other visual elements, such works can be protected under the category of works of fine art.

In other cases, the subject matter may be computer software, program codes, soundtracks, sound effects or other game elements, which can be protected under their respective categories under the Copyright Law. The right holders should provide evidence to demonstrate that the elements meet the constitutive requirements of the corresponding forms of works.

Protection of the whole

As mentioned, the Copyright Law does not reserve a separate entry for “video game work”. What type of work should right holders claim for protection when the entire game falls victim to infringement?

Seek protection as audiovisual work. As a composite form of intellectual results, a video game embodies both computer programs (game codes) and gaming resources (literature, fine art and music, for example). In the end, however, they are presented in the form of visualised gaming graphics, with computer programming co-ordinating all resources in the background. Under the command of both gaming programs and user instructions, gaming graphics manifest as dynamic display and static display, together forming the visual expression of a video game.

Audiovisual works refer to a series of frames of images, with or without accompanying sound. If the right holder can support the argument that the gaming visual is an original intellectual creation, can be reproduced using technological devices, consists of frames of images with or without accompanying sound, and the gaming visual constitutes audiovisual expression within the predefined scope, then the product may be protected as audiovisual work.

Seek protection as other intellectual achievements meeting the characteristics of work. A video game is, in many ways, a special medium. Behind the eventual visuals, many underlying codes, elements and rules are also susceptible to infringements and require protection. Yet “audiovisual work” covers only that which can be visually expressed. Thus, protection secured via this route may not extend to the specific rights in the greatest need of defence.

“Other intellectual achievements that meet the characteristics of work” is an underpinning provision added to the 2020 amendments to the Copyright Law. This is a feasible route of remedy if the designed gameplay mechanics are sufficiently specific and detailed, and constitute original expression within an established structure. Passing these tests mean that a game has ticked a sufficient number of boxes to be considered a “work” and deserves to be protected as such.

Jeff Yang is the director of Wang Jing & GH Law Firm | yj@wjngh.cn