The number of intellectual property lawsuits for games and animations soars and faces challenges

Unlike industry insiders in the animation and game industry, judges responsible for hearing intellectual property cases observe this field from their own unique perspective.

With the deep integration of best-selling literature, film and television, animation, games and other industries and the formation of a pan-entertainment ecosystem, game research and development often relies on the popularity of well-known IPs in the past to use best-selling novels, comics, cartoons, movies or TV series as the basis for adaptation and creation. Some game developers do not have a strong sense of copyright, and the unauthorized use of other people's works has become a major infringement area.

The emergence of new game products and the use of new technologies have also increased the difficulty of applying the law and interpreting the law by judges. In more and more game rights protection cases, issues such as how to divide responsibilities between different entities and the criteria for judging channel operators to bear joint and several liability urgently need to be regulated.

In recent years, my country's online game and animation market has developed rapidly. The animation and game industries have been deeply integrated, and the number of game players has shown geometric growth.

"Take Shijingshan District of Beijing City as an example. After Shijingshan District vigorously developed cultural and creative industries, the animation and game industry has made great progress. At present, the annual animation and game output value of Shijingshan District accounts for half of that of Beijing City." Yi Zhenchun, President of the Intellectual Property Division of the People's Court of Shijingshan District, Beijing City, told reporters.

Unlike industry insiders in the animation and game industry, judges responsible for hearing intellectual property cases observe this field from their own unique perspective. So, against the background of a significant increase in the number of intellectual property disputes over animation games, what new situations and new problems have judges encountered during the trial of cases? The Shijingshan District Court of Beijing City set up a special research group to conduct research on this.

The

research object of the research group's research group's soaring number of intellectual property lawsuits involving games, animation and online games was the first-instance intellectual property civil dispute cases involving animation and online games accepted by the Shijingshan District Court from 2013 to January 2016. It was based on judicial statistics, review of file files, and in-depth interviews with more than ten well-known online game companies:

From 2013 to October 2016, the Shijingshan District Court accepted a total of 283 civil cases involving intellectual property rights involving animation and games. In 2013, 7 cases were received. In 2016 alone, a total of 96 cases were received in the first 10 months. The number of cases shows a significant increase year by year.

Judging from the distribution of causes of cases, there were 268 copyright infringement disputes, accounting for 94.68%. Most of them were game content suspected of infringing on other people's copyrights such as animation, art, music, and written works. The largest number of cases were disputes over infringement of the right to information network dissemination of works, with 225 cases. In the past two years, the intellectual property cases involving animation and games accepted by the Shijingshan District Court have covered almost all intellectual property cases that can be accepted by grassroots courts.

Yi Zhenchun analyzed that with the deep integration of best-selling literature, film and television, animation, games and other industries and the formation of a pan-entertainment ecosystem, game research and development often relies on the popularity of well-known IPs in the past to adapt and create best-selling novels, comics, cartoons, movies or TV series. Some game developers do not have a strong sense of copyright, and the unauthorized use of other people's works has become a major infringement area. This is one of the reasons why the number of game copyright infringement cases remains high.

In addition, there were 3 intellectual property contract disputes involving games, mainly contract disputes arising during the game development process, 1 each was a technical commissioned development contract dispute, 1 computer software copyright licensing contract dispute, and 1 entrusted creation contract dispute.

"With the fine division and division of labor of industries, it is more common for work such as art design, music creation, and code writing to be outsourced to other companies. Problems involving games such as delayed performance, unclear acceptance terms, and unclear contract payment conditions occur from time to time." Yi Zhenchun said.

Judging from the amount of litigation objects, the amount of case objects shows a significant upward trend. In 2013, the total amount of subjects involved in online game cases was 228,000 yuan; in 2014, the total amount of subjects involved in cases was 18.08 million yuan, with 4 large-scale subjects; the average amount of subjects in each other case was 43,700 yuan. As of October 2016, the total amount of subject matter in animation and game cases was 26.9803 million yuan. Among the unfair competition disputes accepted by the Shijingshan District Court, the case with the highest amount of money was an unfair competition dispute involving games, with a total amount of more than 9 million yuan.

Among the animation game cases heard by the Shijingshan District Court, there were 6 cases of unfair competition disputes. The accused game used false publicity to cling to the goodwill of well-known games during the promotion process, or a game company that issued similar games, and sued the other party for unfair competition.

Yi Chunzhen told reporters that in the animation and game cases heard by the Shijingshan District Court, the litigation subjects included game developers (companies that produce games) and operators (Refers to the operation of online games through independent development or obtaining agency rights from other game developers, providing value-added services to players and placing built-in advertisements for games by selling game time, game props or related services), game channel platform providers (including application stores and game platforms) and Internet service providers (referring to companies that provide Internet services).

"Many controversial and large-scale cases often involve multiple defendants, including game developers, operators, and channel platform operators. The game developer sues the developer, publisher, and channel operator of another game. The litigation model has led to an increase in the number of multi-defendant cases." Yi Zhenchun said.

New technologies have increased the difficulty and complexity of cases.

"The emergence of new game products and the use of new technologies have also increased the difficulty of applying the law and judges interpreting the law." Yi Zhenchun said.

Timestamp, data capture resolution address, H5 game... these words are no longer "exclusive" to network engineers and programmers. The reporter learned that while the number of cases involving animation and games has increased, the difficulty of trial cases has also increased, and many new technologies have become topics that judges cannot avoid.

"For example, the case heard by our court against a company in Xiamen for violating the right to copy H5 game templates and disseminate information online involves the legal characterization of whether the game template is protected by the Copyright Law; a company sued a server provider for infringing the right to disseminate information online has become the first case in Beijing City or even the first case in the country in which a server provider has become a defendant because others provide 'private services' of online games." Yi Zhenchun told reporters.

The reporter learned that relevant professional and technical knowledge has become a challenge for judges. Faced with technologies such as timestamp authentication technology that proves the creation and publication time of the plaintiff's work, and data capture and address resolution software used to prove the defendant's infringement, how to judge these new technologies or certification methods if the other party objects to these new technologies or certification methods. The function, objectivity of these technologies or software and the validity of the resulting certification content remain controversial. Judges also make it more difficult to admit evidence and determine facts.

"The newly accepted case in which the rights holder sued others for embezzling game templates for copyright infringement needs to be clarified on whether the game template constitutes a work, which elements constitute a work, and what type of work it constitutes." Yi Zhenchun said that new types of cases involving animation and games are constantly emerging, requiring judges to properly interpret and apply the law within the existing legal framework on the basis of grasping the spirit of legislation.

According to reports, the complexity of content and diversity of elements of online games make it difficult to compare game works and identify the proportion of infringing content. If the rights holder wants to prove that the infringement element runs through the entire accused game, he needs to notarize the entire content of the accused game. However, large games often have multiple branches or copies, and the time and money cost for all customs clearance are high, which increases the difficulty of the rights holder's rights protection. The workload of comparing it with the court.

In animation and game cases, especially copyright and anti-unfair competition cases involving overall game plagiarism and multi-element plagiarism, due to factors such as the complexity of infringing game content and the irregular appearance of infringing content, the above cases are difficult to obtain evidence.

In the case of a company vs. a troupe and other defendants for copyright infringement and unfair competition disputes heard by the Intellectual Property Division of the Shijingshan District Court, the work claimed by the plaintiff company was the image of an art work in a series of works, and believed that the defendant used the above-mentioned works without authorization in the form of actors in the stage play performed by a troupe.

The investigating judge compared and analyzed the factors such as hair design, mask shape, clothing style and color matching, and shoe color matching one by one, and believed that the above details were significantly different from the overall presentation effect and did not constitute the same or substantial similarity.

The reporter learned that in cases involving anime characters, the differences between two-dimensional graphic art works and three-dimensional actor costumes, and 3D game character images in terms of creation methods, expression forms, and detail presentations have also increased the difficulty of judges 'comparison.

"The maturity and application of new technologies such as 'VR'-virtual reality,' AR'--augmented reality will also give rise to new game forms and business models, and will lead to the continuous occurrence of new types of litigation disputes." Yi Zhenchun said.

In addition, the judge believes that in the field of intellectual property rights related to animation games, there are still disputes between the legal theoretical community and the practical community on many issues.

According to reports, online games are composed of a variety of elements such as game name, trademark identification, program source code, game rules, scene map, storyline, characters, text introduction, dialogue narration, background music, etc., and the complexity and high. The production cost is similar to that of film works, but my country's Copyright Law does not define online games as a single type of work as a whole. Game rights subjects usually divide online game elements and claim rights according to different work types.

In judicial practice, few types of civil cases involving intellectual property rights in animation and games involve patent rights, because animation and games mainly rely on entertainment and enjoyment to attract customers, and are not consistent with patent rights that focus on practicality and functionality. There is currently great controversy in the theoretical and practical circles as to whether computer software and game hardware facilities as a whole can apply for invention patents, whether the game interface constitutes a design, and whether the game rules constitute a technical solution protected by the patent law.

Litigation involving unfair competition is becoming increasingly personalized

. Reporters learned from the research team of the Shijingshan District Court that in the first half of 2016, the Shijingshan District Court successively accepted many cases with a target amount of more than 5 million yuan or even close to 10 million yuan, most of which were unfair competition disputes involving well-known games.

"As the development hotspot of online games shifts from computers to mobile phones, the games involved in the case have changed from client-side online games to mainly mobile games." Yi Zhenchun said that the development cycle and life cycle are relatively short. In order to capture users 'attention, expand the publicity effect, or use game names and character images that are the same or similar to other people's well-known games without authorization, mobile games infringe on well-known end games. The registered trademark rights of well-known games are frequently reported, or through false publicity, users mistakenly believe that their games are related to previous games and cling to the goodwill of previous well-known games, suspected of unfair competition.

The plaintiff's allegations are no longer limited to simple plagiarism of source code, imitation of game characters, etc., and accuse competitors of issuing suspected infringement statements or suing at important time points such as the promotion of their game products and the company's listing, and falsely using well-known game names to attach themselves to the game. Unfair competition behavior such as goodwill. The number of merger cases has increased significantly, and rights holders have simultaneously sued copyright infringement or trademark infringement to "add" unfair competition.

"This has something to do with the increasingly fierce competition in the game industry, the need to clarify behavioral boundaries, and the amazing monetization ability of game products." Yi Zhenchun said that the elements of online games themselves are multiple and complex: the thoughts and expressions in the game are not clear; the gameplay and rules, character names and relationships, weapons and martial arts, level settings, etc., are not protected by the Copyright Law if they belong to the category of thought or do not constitute a complete expression; whether it is improper for others to use elements without permission to gain benefits often requires a comprehensive judgment based on the use method and the user's awareness of the game...

"The content that the rights holder seeks legal relief may exceed the scope of protection under the Copyright Law and the Trademark Law, but it can indeed bring certain economic benefits. At this time, the Anti-Unfair Competition Law can be invoked to expand the protection space for the game." Yi Zhenchun analyzed.

In the view of judges, unfair competition cases are extremely personalized, and compensation standards need to be determined according to the specific circumstances of each case in judicial practice.

According to the judge investigating the case of the Shijingshan District Court, when determining the amount of compensation based on the illegal income of the infringer, for online games, the rights holder can judge the profit of the infringer by using industry reports issued by authoritative third parties or industry associations, the number and load capacity of the defendant's servers, user payment status, the promotion of the defendant's game, the game charging standard, the net present value of the customer's average profit, and the number of game downloads. At the same time, the proportion of infringing elements in infringing games is comprehensively considered to determine the illegal income of the infringing party.

In determining the illegal gains of the infringer, the principle of estoppel can also be considered. If the infringer advertises his own profit or game operation status to the public in the process of game promotion or publicity, the obligee shall use this as evidence to prove the illegal income of the infringer, unless the infringer provides sufficient and effective evidence to refute his previous statement, otherwise the court shall accept the evidence presented by the obligee.

In view of the serious problem of homogenization of online games, more and more disputes involving online games and larger and larger cases, the research group put forward legislative suggestions: punitive damages similar to those stipulated in the trademark law can be introduced to apply punitive damages to infringing acts with obvious subjective malice, bad means and huge profits from infringement, so as to crack down on illegal chaos in the field of online games and guide industry norms.

The standard for identifying joint liability for infringement needs

to be clarified. What steps need to be taken to present a complete game to game users? The judge gave answers to questions that gamers might not necessarily be able to answer.

"After the game developer completes the development of the game, it will be handed over to the operator for promotion and distribution. Game users can download the game on the website or mobile App platform provided by the game channel platform provider, and the three parties will share the game according to a certain proportion." Yi Zhenchun said.

Yi Zhenchun introduced that the current game channel platform vendors can be roughly divided into three categories: develop games themselves and integrate game development, operation, and channels; represent games developed by other developers, including exclusive agents and non-exclusive agents; Provide users with game platform services and are responsible for website maintenance, and all games are uploaded independently by users. Due to the different business models of game channel platform providers, the legal responsibilities they bear when the games they publish are accused of infringement are also different.

"The vast majority of online games, especially mobile games, are provided to the public through online game promotion platforms. The role of channel platform providers is becoming increasingly apparent. The share ratio of some game channel platform providers is even higher than that of R & D developers and operators." Yi Zhenchun introduced that in more and more game rights protection cases, rights holders will choose to sue game channel platform providers along with game developers and operators as co-defendants. Compared with the responsibility determination of game developers and operators, the responsibility determination of game channel platform providers is more complex and often becomes the focus and difficult issue in the trial. Issues such as how to divide responsibilities between different entities and the criteria for judging channel operators to bear joint and several liability urgently need to be standardized.

"No matter which business model, after receiving the infringement warning letter and preliminary evidence sent by the rights holder, the game channel platform provider must take necessary measures, including offline the game or notifying the game developer to delete the infringement factor, and cannot let it go. Otherwise, you will need to bear joint and several liability for the increased losses." Yi Zhenchun said.

Editor: Nancy