Milestone in the game industry: The “play plagiarism” that has been arguing for more than ten years is finally coming to a conclusion?

If you want to say something about the enduring topic of game discussion, then “intellectual property rights” must be one of them.

Even if everyone has been arguing about this for more than ten years, as long as relevant topics are brought up, they can still quarrel for a day. This is not difficult to understand, after all, game plagiarism has always been difficult to define at the legal level, especially the part of the rules of the game. In previous game infringement cases, the game was usually divided into nine types of works, including computer software, literary works, and artistic works, and whether the core code, art resources, and text content constituted substantial similarity was used as the judgment standard, while the gameplay was often not done. Protect.

Just recently, the judgment of the infringement dispute case between “Litu” and “Three Wars” has aroused widespread controversy. However, compared with the 50 million yuan in compensation in this case, Mr. Putao believes that the specific legal judgment logic in the judgment may be more worthy of everyone’s attention.

Because the first-instance judgment of this case not only means that a certain product of yours is likely to be “settled after the fall” and deemed to be a copyright infringement; it also means that the domestic game industry may be about to enter a new legal stage—no matter whether Regardless of the outcome, the final result of the case will become a major basis for legal judgments in similar infringement cases in the future. And this will also change people’s attitudes towards “game innovation” and “play plagiarism”.

Mr. Putao consulted Li Zizhu, deputy director of the Intellectual Property Professional Committee of the Beijing Obligation Law Research Association, and lawyer Qi, an expert in intellectual property law, hoping to get as close as possible to the actual legal situation.

01 What did the verdict say?

Let’s first look at a few issues that everyone is most concerned about. Who will win this lawsuit?

Judging from the first-instance verdict, “Litu” did not win all, and “Three Wars” did not completely lose.

  • The court confirmed that Jianyue had infringed NetEase’s right to adapt the 79 gameplay rules of the game “Bitu”, and asked Jianyue to delete or modify the use of “Three Kingdoms: Strategy Edition” in the 79 game rules involved in the case to constitute “ The content of the original expression of “The Shore of the Land”, and modify the game mechanism formed by the interconnection and function of these rules;
  • The court held that Jianyue did not infringe NetEase’s right to disseminate information on the game “Bitu”;
  • The court did not support Netease’s request to Jianyue to delete the 79 game rules and mechanisms involved in the case;
  • The court supported NetEase’s request for 50 million compensation from Jianyue Company;
  • Regarding Netease’s request to Jianyue to suspend “Three Kingdoms: Strategy Edition”, the court did not support it;

According to the content of the judgment, the court recognized the original expression of some of the game rules of “Litu”, and did not fully support all of Netease’s claims, and rejected Netease’s request to suspend operations and delete 79 game rules that had the greatest impact on “Three Wars” litigation claims.

In addition, the court added several clarifications:

(1) It is inevitable that the two SLGs with the theme of the Three Kingdoms have similar core rules and elements, and “Bitu” also makes extensive use of the rule elements of other earlier games. In the creation of emergent (rule-based) games of the same type and background, even if there are similar core rule elements, as long as there are different specific designs for the core rules, or the game mechanisms formed by internal logical connections are different, the choice of strategy It will be very different, the game experience will be very different.

(2) The judgment affirms that “Three Wars” itself has certain originality. One is that the game material, which is also the core content of the video game, is completely different from “Bitu”. While game rules are more fundamental in video games, game material is also crucial. The rules are the bones, and the material is the skin. The two work together to affect the player’s experience and audio-visual experience. In the case of different game materials, the player’s experience and audio-visual experience will also be different. The second is that “Three Wars” did not copy the original 79 game rules involved in the case, and created a large number of game rules. When integrating the game rules and logical associations involved in the case into its game mechanism, it also established a new The overall structure of the game.

(3) The game “Bitu”…is not only the result of drawing lessons from previous games and making innovations, but also provides ideas for the development of later games. As for the game rules that originated from previous games, literary works, historical facts and basic game logic, “Bitu” has made original selections and arrangements, which should be protected. However, this protection is limited to specific expressions that are innovative. If the scope of protection is extended to the public domain, ignoring the large number of original designs of later games, and simply identifying “infringement” and requiring “stop operation”, it will create a new imbalance and hinder the re-creation of new works and cultural development and prosperity .

(4) In addition, from the perspective of social welfare, the court stated that electronic games not only involve the interests of game creators and operators, but are also closely related to the interests of the majority of players. If the order is ordered to stop operations, the interests of players will inevitably be seriously damaged.

The current result is that “Three Wars” can continue to operate normally, but Jian Yue does not agree with the ruling in the first instance that “”Three Wars” infringes the right to adapt the 79 gameplay rules of “Situ””, and is preparing to appeal.

02 Where are the key controversial points?

There are three most controversial points in this judgment.

First, where is the dividing point between “thought” and “expression” in game play design?

Li Zizhu said that whether the rules of the game are protected, it may be necessary to judge whether the rules of the game are specific enough to have become expressions. More specific game rules may belong to expressions, while more abstract game rules may belong to ideas. The point of contention is, what level of specificity should be considered an expression? Why are specific general design and land occupation design an abstract idea rather than a concrete expression?

In this case, the explanation given by the court is: the specific rules are detailed and meticulous designs around the basic rules, which have a broad space for creative expression. This is manifested not only in the design of individual rules, but also in the various mechanism levels formed by the interrelationships and functions between rules.

The court cited the example of the “Fortress” game rule in “Bitu”, which is designed for players to capture distant lands and cities. Even though different games use the “fortress” rule, various choices and arrangements can be made. Such as the specific conditions and level of fort construction, the specific resources consumed by each level of fort, the number of teams that can be accommodated after completing the upgrade of the fort, the field of view provided by the fort for players, and whether the fort can be dismantled, etc., can be designed in detail.

The court held that Netease Leihuo designed the fortress into five levels, and each level corresponds to placing a troop. Users only need to occupy a grid of land anywhere on the map and consume enough resources, government orders and time to build a fortress on the land. , to realize the long-distance mobilization and transfer of troops, etc., which fully reflects its personalized choice and is original.

Regarding the understanding of the “fortress” in this case, Lawyer Qi believes that a fortress is actually a limited expression, and protecting a limited expression is an act of monopolizing ideas. Copyright law generally chooses not to protect this limited expression, but recognizes it as a form of thought. category.

Li Zizhu said that according to the combination theory of thought and expression and the principle of necessary scene, if a certain kind of thought has only one or several limited expressions that make the thought and expression inseparable, the copyright law regards this expression as a thought and does not allow it. Protection; when describing a special creative theme or era background, certain scene descriptions will inevitably appear again and again, and this kind of “necessary scene description” is also not subject to copyright protection.

Including the material system, general system, tactics system, strategic selection system, alliance system, season system, etc. that are identified as infringements, these are actually common basic setting rules for most SLG games.

“You can’t just allow Zhang Wuji to fall off a cliff to obtain the Nine Suns Magic Art, but not let Yang Guo fall into a deep mountain to learn the Dugu Nine Swords.”

Second, how to determine the originality of expression?

To clarify what kind of gameplay rules are original, it is first necessary to distinguish between public domain gameplay rules and private domain gameplay rules.

Feng Xiaoqing, a professor at the Civil, Commercial and Economic Law School of China University of Political Science and Law, pointed out that in copyright protection, the ideas contained in works belong to the public domain and can be freely used and disseminated by anyone; only the expression of the ideas is protected by copyright. Of course, there is also the problem of limited or even unique expressions. In this case, expression is equally unprotected, as would otherwise be the case for ideas.

As far as game works are concerned, whether game rules belong to the category of thought or expression cannot be generalized, and should be analyzed in more detail: to distinguish between general game rules and specific gameplay and rules with individual characteristics. Among them, the former belongs to the category of ideas and cannot be monopolized by anyone; the latter is the part protected by copyright.

For example, for different Three Kingdoms SLG games, elements such as maps, resources, and arms are all designed based on the history of the Three Kingdoms, and there will be similarities.

It was mentioned in the judgment that “Bitu” is the result of learning from and innovating earlier games, and extensively uses the rule elements of other earlier games. However, in terms of the game mechanism composed of rules, there is no previous game that has all the 106 rule mechanisms that “Bitu” claims.

The court held that in terms of the expression of specific rules, even the games “Three Kingdoms Journey” and “Kingdom Conquer” that Jianyue claims to be the most similar to “Litu” are quite different from “Litu”. For example, the map of “Litu” is a structure of birth state-resource state-Sili from the outside to the inside, while the map of “Three Kingdoms” is divided into weather, location, and harmony. Players of “Bitu” can only be divided into the state of birth for development and integration at the beginning, while players of “Three Kingdoms Journey” can be born in various locations on the map and so on.

Including the command value of generals (COST), the level and distribution of land defenders, resource sweeping/farming, and land connection in “Three Kingdoms Journey”, in this judgment, all due to text description, interface layout, arrangement and The numerical value of details is not similar to that of “Bitu”, so it is excluded. The court believes that any specific setting of a universal design has a large creative space.

Therefore, the court determined that most of the 106 game rules and game mechanisms formed in the case involved in the case belonged to original expressions in the sense of copyright law.

However, if it is recognized that this kind of specific design further developed around the basic rules reflects the judgment, trade-offs and arrangements of the game designer, and then constitutes the original expression of expression protected by the copyright law, then a new development based on this set of design logic is also carried out. Does the specifically designed “Three Wars” also have original expressions? Does the stitching game belong to innovation? Or what degree of stitching is considered an original expression?

Lawyer Qi believes that geo-SLG itself has completed the most basic and most critical gameplay construction in “Three Kingdoms” released by Japan’s Koei in 1985. The game design of “Three Kingdoms Journey” and the general design of SLG submitted by Jianyue failed to give a clear and convincing response in the judgment. Therefore, whether the game “Bitu” as a whole is an original intellectual achievement remains to be discussed.

Three Kingdoms Journey

Third, what constitutes an infringement of an original expression?

As for the protection of original expression of gameplay, Li Zizhu believes that the law does not expressly stipulate the proportion of similarity between two works to constitute infringement, so theoretically speaking, as long as A work plagiarizes the original expression of B work, no matter how much, All are infringing.

The result of the court’s first instance judgment was that “Three Wars” structurally used the original expression of the 79 rules of “Saidu” and its game mechanics. But it is also mentioned that “Three Wars” itself has a certain degree of originality, and the 79 game rules involved in the case are not copied as they are, but a large number of game rules have been created and a new overall game structure has been established. Coupled with different game materials, the player’s experience and audio-visual experience will also be different.

So how should we make legal judgments in the two cases of “the specific rules of the game have changed, but the final game experience is the same” and “the specific rules of the game are similar, but the final game experience is different”?

According to Li Zizhu, similar situations can refer to compilation works. Although the content elements of everyone are the same, original expressions can also be produced according to different arrangements and combinations of creators. Conversely, even if the creator makes simple adjustments to each content element, as long as the presented works are similar, it will still constitute infringement.

He believes that in order to protect the innovation and development of games through laws, the key point is to clarify the specific boundaries of ideas and original expressions.

03 How big is the impact on the industry?

Seeing this, readers should have already noticed that the copyright infringement case sued by “Saidu” against “Three Wars” is not only related to these two games and two game companies.

The future direction of the judgment of this case, as well as changes in supporting laws and regulations, will inevitably affect the development of the entire domestic game industry and determine the boundaries of category evolution and innovation. Because this judgment is very historic: it is the first time that a domestic court regards games as other works, and compares and adjudicates the infringement of game play rules.

Lawyer Qi said that the case’s innovative judgment on hot legal issues or complex disputes is worthy of recognition, but there are still some shortcomings, especially whether the gameplay claimed by Suitu belongs to the work and the originality of the work.

He said that the protection of game copyright should always be prudent. Throughout the United States, Japan, South Korea and other countries with similarly developed game industries, there is no precedent for using copyright to protect game rules. The judiciary needs to establish clearer infringement determination rules and behavioral guidelines so that current and subsequent practitioners can find a reasonable development boundary, so as to promote the prosperity and development of the industry while protecting innovation.

If the current judgment of the first instance is used to infer, most of the similar games in the domestic market have similar gameplay and rules, and thus the same game experience. Or multiple “infringement objects”. But in today’s game market, it is difficult to find completely innovative products built from scratch. The integration of categories and complementary gameplay have become a reality, and this is actually the basis for the industry to achieve breakthrough innovation.

Of course, those shoddy skins are also worth noting. Li Zizhu said that the key to protecting the innovation and development of games through laws is to clarify the specific boundaries between “general thinking” and “original expression”: don’t let “general thinking” become a shield for the majestic game of changing skins, and also “Original expression” cannot be allowed to become the shackles of game innovation, or an excuse for game companies to monopolize gameplay.

As a legal worker, what Attorney Qi hopes to see is a more rigorous fact-finding and legal application attitude, not to encourage wanton plagiarism and infringement, and to prevent the unlimited expansion and abuse of rights.

“What I am concerned about is, what kind of legal predictive judgment will this case give to the industry and subsequent practitioners? Whether our judicial judgment is to establish rules, give judicial guidance, or just ban it. important to consider.”

Specifically in this case, what is more closely related to the industry is whether future judgments will recognize all games as “other intellectual achievements that meet the characteristics of works”? Is the judgment result a common feature of the game industry that only applies to the case of “Bitu”? Will the judiciary improve the legal provisions related to gameplay? Or can it only be demonstrated through individual cases? How exactly is the originality of gameplay defined? What constitutes copyright infringement?

The answers to all these will be revealed in the final trial of this case. Regardless of the answer, it will change the pattern of the domestic game industry to a certain extent.