Legal experts teach you to identify which elements can be cottage

If you want to choose the most easy to make money today's business, in addition to the criminal law has been expressly included in the occupation and open excavators, online games are absolutely ranked among the best. In Hee-hee to shoving in the online gaming industry, copyright infringement has become a lot of practitioners of the "Original Sin." Chinese network game huge market and profits breed countless "cottage" game, immersed in the network game "insiders" seems to have been accustomed to the strange situation of online games. But the phenomenon of "shanzhai" and "plagiarism" will not be the normal of Chinese online games. In recent years, Tencent and other industry bosses gradually to the important intellectual property nets to its door. Obviously, after this step, the industry bosses will use the hands of intellectual property to collect nets, fishing against the copycat. How to avoid becoming a fish in the net, should be the problem that all network game practitioner must think seriously.

The game development process does not pay attention to the layout of copyright, it is tantamount to burying a time bomb, perhaps when this bomb will be built up years of painstaking bombing of the Ashes. This paper attempts to analyze how to avoid copyright infringement and how to protect the rights of infringement under the circumstances of copyright infringement in the field of online gaming.

The rules of the game: imitation is the best flattery?

The mutual imitation of the rules of the game has become a public secret in the game world. Typical "Elimination class" game, as long as in the application store search "repeatedly", can search out thousands of search results, the rules of the game are similar, that is, click to eliminate the same image. Specific to the "fruit repeatedly see" type of game, there are "fruit repeatedly see", "Q version of the fruit again and again", "fruit and vegetable repeatedly see", "Fruits every Day", "repeatedly see", "Fruit Lian Meng", "repeatedly look at the fruit version" and many other versions. So the question comes, the game of imitation, whether the formation of copyright infringement?

To some extent, imitating the rules of the game will lead to the production of homogeneous games, thus crushing the market share of original online games. But the complete innovation of the rules of the game is very difficult, some of the creators of the game has been difficult to trace back, many people also put forward the rules of the game belong to the category of thought, and the copyright law only to protect the expression of ideas, do not protect the thought itself, so the rules of the game

The "Three Kingdoms Kill v. Three countries chop" case, "The Three Kingdoms Kill" the Three Kingdoms "to take the synonym substitution, the word order inversion Way change" Three Kingdoms Kill "the character choice, the character skill, the game card effect, the game rule's text description, constitutes" The plagiarism others work ". The "Three Kingdoms Chop" aspect argues that the work of the game designers This includes defining the general direction of the design (linking the Three Kingdoms background to the Kill card game), designing the framework (dividing the cards into identities, physical strength, roles and game cards, and confirming the rules of the game), design rules (the classification of the game, the definition of function, the skill-giving of the role belongs to the concept of copyright law, not the object of copyright law protection. Purely from the rules of the game, "Three Kingdoms Kill" is not pure, as "Three Kingdoms chop" aspect proposed, "Three Kingdoms Kill" the whole design idea, imitated the Italian card game "bang!". In the past year, the gaming industry had expected the "Three Kingdoms to Kill v. Three countries" case for the game of similar rules of the game whether the infringement specified direction, set the benchmark. Unfortunately, the case finally failed to become a milestone in the game, the grand aspects of the end of 2010 to Hangzhou West L. District People's court to withdraw the lawsuit.

At present, China's judicial practice has not yet existed because of the two game rules similar to the game after the development of the Games constitute the first development of the game infringement. Therefore, the current imitation of other game rules still belong to the "safe zone", but the judicial practice will not be static, as the game field gradually from the savage era to standardize, do not rule out the future Imitation Game rules are identified as infringement.

Second, the role, pictures, sound effects and other game elements: imitation should be cautious

Game products are not a simple piece of code, text, patterns, music, role is an integral part of the game. The words, patterns, music and so on in the game may compose the writing work, the fine arts work as well as the music work, by the copyright law protection. According to the copyright law, it is a tort to reproduce, distribute or disseminate works to the public without the permission of the copyright owner.

In the judicial practice, there are many cases in which the court supports the copyright owner, and finds The imitation of the game text, pattern and music as tort. Blizzard, NetEase v. Shanghai Tour is a typical case of fresh out, November 18, 2014, Shanghai, a Chinese Academy identified: Shanghai Tour in the "Wolong Legends-The Three Kingdoms" in the use of the logo and individual animation composition of the "Stone Legend: Warcraft Hero Biography" copy, Infringement of copyright owners to the relevant works of reproduction rights and information network dissemination rights. Another example, Shanghai Magic Travel Digital Entertainment Co., Ltd. development of the "Baby Tank" game part of the role of image and equipment and Shenzhen City Network Limited development of the "Hero Island" game in the role of image and equipment is very similar, the latter in court through a live demo of Shanghai Moliyo Tour How to edit the role of "Hero Island", Finally get the court's support.

It is noteworthy that the game in the large section of the game background, characters, world view Introduction may constitute a writing works. For a single word of the role or equipment name, due to the unique identification of a single name is more difficult, and the copyright law of the original works of writing requirements relative to the art works more stringent, so the judicial practice is inclined not to identify the role or the name of the equipment as a work. For example, in Nexonholdings Co., Ltd., such as Sue Tencent Technology (Shenzhen) Limited, such as infringement of copyright, unfair competition dispute case, although the court recognized "bubble Hall" and "QQ Hall" game several props names have similarities, but also found that the plaintiff is not to such as "Sun cap", "Angel Ring" , "Angel wings" and other names enjoy copyright. Some time ago, the "Big masters" game because of the use of Jin Yong's novel "Yang", "East undefeated", "" Tianshan children, "such as virtual characters and" sword "," Dragon Sword "and other equipment names, and was Sohu Tour prosecution, and eventually the two sides to settle the dispute outside the court. Although we do not know the reasons for the settlement, but I think the "Big masters" because of the use of novel role names and equipment names constitute tort is less likely. After the "Big masters" to modify all the alleged infringement of the content, but retained the names of the people, the outcome of the treatment of events from the negative to confirm this judgment.

Iii. Source Code Infringement

The Internet enterprise's job-hopping is extremely common, but the staff goes, often does not swing the sleeve not to take a cloud, but may steal the company's source code.

At present, Chinese courts have found that the standard of computer software infringement is "contact + substantial similarity" principle, in particular, from the following two aspects of the review: first, whether the infringer has contacted the infringer to enjoy the copyright works; second, whether the request to protect the work and the accused of infringing works is a substantial similarity between (note [1]). In employee tort cases, "contact" is often easier to determine, if the infringer to provide the infringer and the Infringer labor contract and explain the infringer in the software development process of responsibility, or provide evidence that the software has been published or sold. In the judgment of the "substantial similarity" criterion, taking into account the nature of computer software, in the judicial practice in the process of similarity is generally used "step by Step Control" (the software works to carry out word for word), "all concepts and Sensory control method" (that is, from two pieces of software works of the overall style, characteristics, Whether the sensory aspects are similar or not, and the "syllogism method" (i.e., judging from the similarity of the input and output of the software) (note [2]), the specific factors include data structure, function design, source code, file, tool name, etc.

To prevent the source code infringement, evidence is very important, the right person should pay attention to timely evidence preservation measures. Looking at the judicial decisions that can be found, despite the lack of permission to use the game company's source code cases, the game company's winning probability is high, but the game company to obtain compensation for the poor amount of money, generally tens of thousands of yuan to hundreds of thousands of yuan.

Four, the game copyright authorization: Hidden mystery

"Buy" copyright is also hidden mystery, is not a lot of the imagination of "hand money, delivery" so simple. The expression of the same idea is diverse, such as the recent hit of "Red sorghum" there are novels, movies and TV dramas and other expressions, to obtain copyright must want to know what kind of expression they need, don't be silly to tell.

The following example is a "bloody" lesson. Shanghai Fun Network Technology Co., Ltd. (hereinafter referred to as "Shanghai Fun") from the "Ghost Blows" comic publishing party Shanghai Long Painting Co., Ltd. (hereinafter referred to as "Shanghai City Diffuse") to 2 million yuan for the price of "Ghost blows" comic book online game adaptation right, then according to "Ghost blows" in the characters, scenes, Image and other content developed the network game "ghost blows Ol", but in the game to participate in the "Chinajoy09" after the exhibition received a grand indictment, in the course of the proceedings in Shanghai to discover the fun, Shanghai city diffuse and no "ghost blows" the original authorization, and can only adapt themselves, the creation of comics, the image itself to authorize, In the end, Shanghai fun can only through the payment of 4.5 million yuan licensing fee from the grand hand to obtain "ghost blows" the authorization of online games.

Theoretically, there are two ways of obtaining copyright: the first is to obtain the right to adapt the works from the copyright owner; The second is to obtain authorization from the authorized third party; In the first case, to ensure that the copyright owner has not exclusive grant to other subject reorganization rights, the second way to ensure that the third party has the right to authorize the delegation. For game developers, in order to avoid "throwing", we should focus on reviewing the ownership of the copyrighted works, the deduction works should obtain the original copyright owner's permission, the cooperation works should obtain the cooperation author's permission, the license contract should pay attention to the agreement copyright right guarantee clause and the corresponding breach rule. In addition, in the case of cost permitting, the permission to use the right to pay attention to clear is the exclusive right, excluding the copyright owner, including any person in the same way to use the work.

V. Safeguarding rights--long way to repair

One of the important reasons for the rampant infringement in the game field is "infringement is easy and rights are difficult". Long litigation time, difficulty in proving evidence, employing lawyers and other litigation costs high, tort personnel's low compensation capacity, the Court found that the amount of compensation is not high, all kinds of reasons cause the lawsuit party's profit is far higher than the cost, can be described as "road long its repair far XI." I am prepared to prepare three rights raiders, I hope to use this to stimulate the struggle in the long line of rights on the road of the gentlemen reference.

Copyright infringement and improper competition binding lawsuit

Looking at the current examples of rights protection, it is not difficult to find that copyright owners will generally put copyright infringement and unfair competition together. In fact, the truth is very simple, the exclusion of some cases of lawyers buy a free one of the industry's conscience, for the rights of people, advocates two cases, as long as one of the case is supported by the court, and even if it won. As mentioned above, because the judicial practice of copyright infringement is "contact + substantive similarity" principle, in the judgment of "substantial similarity" often involves the game code comparison and other complex technical issues, and unfair competition protection is more extensive, the evidence is relatively easy to identify. For example, Blizzard and NetEase v. Shanghai in the easy case, the first Shanghai Institute of Unfair Competition to make a decision, after the infringement of copyright disputes to make a decision.

A bluff, a timely move

Because of its high cost and long time, litigation is by no means the best choice for defending rights. By contrast, the lower cost of the letter of attorney and other ways more difficult to effectively defend the rights, Shanda has once issued more than 200 letters of rights, the biggest advantage of the lawyer letter is to be able to a faster speed within a certain range to reduce the infringement. Law is not the only means of safeguarding rights, in many cases, with the help of the media and other public forces, the creation of the right people will be large-scale, large efforts to safeguard the illusion of power, bluff, is also a good idea. If you have to go to the court of Law, the selection of the infringing object should be prudent, as far as possible, to select the larger volume, profit flow and the obvious infringement of the company as the object of action.

Selection of the Prosecution court

The author discovers an interesting phenomenon in the process of statistics of the copyright infringement cases of the existing game company, the game company prefers to choose Shanghai District Court as the jurisdiction court. Tencent Sue 37 play is to the Shanghai Putuo District Court filed a petition, Shanghai Grand v. Chengdu Travel Technology Co., Ltd. infringement of copyright and unfair competition cases to Shanghai, a Chinese court filed a complaint, the above mentioned Blizzard, NetEase v. Shanghai Travel Company's successful judgement is also made in Shanghai. According to the Civil Procedure Law, the lawsuit brought by the tort is governed by the People's Court of the tort or the defendant's domicile, so the victim can sue the people's Court of the tort, or the people's Court of the defendant's place of residence. Although the freedom of infringement of the right to choose the court is relatively limited, in view of the court in Shanghai has a good tradition of safeguarding the interests of copyright owners, if the tort and the defendant's domicile is not in the same area and one of the Shanghai, it is proposed to consider the prosecution. What needs to be specially stated is that the foregoing conclusions have not been strictly sampled and counted, but only a cursory observation by the author for your reference.