Online games are fun and many people like to play them; Others like to watch others play and learn to play with others. After seeing the business opportunities, some online enterprises simply started the business of live broadcasting online games, asking users to play online games while broadcasting the whole process for netizens to watch. However, it infringes the legitimate rights and interests of online game copyright owners.

This is not true. The closely watched "Dream Westward Journey" online game live broadcast infringement case was publicly announced in the Guangdong Provincial High Court today. The second instance decided that Huaduo Company, which organized the live broadcast, constituted a copyright infringement and compensated the copyright owner NetEase Company 20 million yuan.

Guangzhou NetEase Computer System Co., Ltd. (hereinafter referred to as NetEase) found that Guangzhou Huaduo Network Technology Co., Ltd. (hereinafter referred to as Huaduo) had organized anchor personnel to broadcast the content of "Dream Westward Journey 2" on YY and Tiger Teeth platforms without authorization, and believed that it constituted copyright infringement and unfair competition. After unsuccessful negotiation, NetEase filed a lawsuit on November 24, 2014, requesting Huaduo to stop infringement, apologize and compensate 100 million yuan. In the first instance, Guangzhou Intellectual Property Court found that Huaduo Company constituted copyright infringement, and ordered it to stop the infringement and compensate NetEase Company for 20 million yuan. NetEase Company and Huaduo Company were not satisfied and appealed to Guangdong High Court.

Netease appealed that the amount of compensation in the first trial was too low. Huaduo appealed that the continuous dynamic pictures of the game did not constitute a work, and the live broadcast of the game should be a reasonable use, and the method of calculating compensation in the first instance was unreasonable. During the second trial, the two parties had a fierce confrontation, and applied for expert assistants to appear in court to state professional opinions. The litigant representatives of both parties also cross questioned the expert assistants about the focus of the dispute.

After hearing, Guangdong High Court held that:

The continuous dynamic pictures of the "Dream Journey to the West" online game as a whole constitute "works created in a way similar to film production", which should be protected by copyright law;

The sued live broadcast of the game does not comply with the restrictions on the rights specified in Article 22 of the Copyright Law, and cannot be considered as a fair use act;

Huaduo Company organized the anchorman to broadcast the game involved without permission, and made a profit from the live broadcast business. It did not simply provide network technical services, directly infringed the copyright that NetEase Company enjoyed according to law, and should bear the civil liability to stop infringement and compensate for losses;

However, NetEase's request for Huaduo to apologize is not supported due to insufficient reasons;

As for the amount of compensation in this case, it should comprehensively consider the type and popularity of the game involved, the nature and circumstances of the infringement, the market situation of the relevant live broadcast license of the game, the contribution of the game factors involved in the case to the profits of the live broadcast platform, and the right protection costs, which can be determined as 20 million yuan.

In conclusion, the above judgment is made.

Connected judge:

Q: Does the continuous dynamic picture of the game in this case constitute a work?

Chief Judge: The game in this case is a role-playing online game. Its continuous dynamic picture conforms to the core feature of "consisting of a series of pictures with or without accompanying sound". Its complex production process and final audio-visual expression reflect a high level of creativity. It belongs to an intellectual achievement that is original in the field of literature and art and can be reproduced in tangible form, It can be identified as a work created by a method similar to film production as stipulated in the Copyright Law and protected by the Copyright Law.

Q: Does the live broadcast of the game in this case constitute fair use?

Chief Judge: Live broadcast is a kind of real-time communication behavior that provides content directly to the public. The behavior of live broadcast of game pictures is actually the behavior of public communication of works. The live broadcast of games does not fall within the scope of adjustment and control of exhibition right, projection right, performance right, broadcasting right and information network transmission right as stipulated in the Copyright Law, belongs to "other rights that should be enjoyed by the copyright owner", and does not fall within any kind of rights limitation as stipulated in Article 22 of the Copyright Law. From the comprehensive consideration of the nature and purpose of the use of the works, the nature of the works to be used, the quantity and quality of the parts to be used, the impact of the use on the potential market or value of the works and other factors, the live broadcast of the sued game used the game pictures involved for commercial purposes, and the proportion of the parts to be used exceeded reasonable limits, This has affected the normal licensing of the copyright of the game screen involved in the case by NetEase, caused substantial damage to the potential market income of the game involved, and cannot be considered as fair use.

Q: Why didn't you support NetEase's appeal to order Huaduo to apologize and compensate 100 million yuan?

Chief Judge: After the trial, there is no evidence to prove that Huaduo's sued behavior has caused goodwill derogation or adverse social impact that must be corrected to NetEase. NetEase's appeal request for Huaduo to apologize and eliminate the impact lacks grounds. As for the amount of compensation, if the game copyright owner alone enjoys all the profits of the live broadcast platform, it may lead to an imbalance of interests. Based on the principle of balancing the interests of creators, disseminators and users of the works, especially from the perspective of promoting the development of the game and its derivative industries, it should reasonably determine the value contribution of the game factors involved in the case to the profits of the sued live broadcast platform. The compensation amount of 20 million yuan finally decided by the court of first instance is not obviously improper and can be maintained.