| Live-streaming of online games is a rapidly developing new cultural industry form in China.The controversy of copyright fair use which has attracted much attention is mainly reflected in two aspects: one,the works involved in online game live streaming and the types of copyright are still controversial.Secondly,there is a dilemma of applying copyright fair use to online game live broadcast.Firstly,whether online game live broadcast is applicable to the enumerated situation of copyright law;secondly,how to understand the rules of identifying copyright fair use;and finally,whether there are justifiable reasons for limited application of copyright fair use for online game live broadcast.Since the online game live broadcast takes game screen as the main content,therefore,sorting out whether the game screen meets the requirements of copyrighted works and defining the type of works of game screen clearly will provide support for the analysis of subsequent issues.As a part of game works,game screen has originality and external expression,and should be protected by copyright.From the analysis of game creation process,dynamic game screen may meet the requirements of a class of electric works.However,the dynamic game screen is created in the way of “production” rather than “filming”,which does not fully meet the requirements of electric works.Based on the principle that the core of copyright law protection lies in expression and is not limited to the method of creation,the third amendment to the Copyright Law in 2020 amended the term “electro-like works” with the concept of audiovisual works.This provides a clear rule basis for the determination of the type of works to which dynamic game images belong.Among the types of copyright that may be “infringed” by live online games,there are two that are relatively close in connotation: the first is the right of information network transmission,and the second is the right of broadcasting.With the advent of the era of “Triple Play”,it is no longer feasible to distinguish between the two based on technical characteristics.In this paper,by comparing the length of time the information is retained in the transmission medium,we find that there is a big difference in the way the two rights are exercised.If the perpetrator disseminates the information of game works through broadcasting,it may infringe the“broadcasting right”.Because the information of the work cannot be preserved in the transmission medium,the number of times the information of the work is used is very limited,even though such use may take the Internet as the transmission medium,which has the technical characteristics of two-way transmission.In contrast,the regular and quantitative playback of game works and the playback of live or broadcast programs of online games(beyond a reasonable period of time)on the Internet is a continuous use of the information of game works,which may “infringe”the right of information network transmission.In the rules for determining the fair use of copyright,there should be a proper balance between the statutory enumerated circumstances and the general limited elements.This is because although the third amendment proposal of the Copyright Law in 2020 added the thirteenth statutory enumerated circumstances “other circumstances stipulated by laws and administrative regulations”,the policy makers’ expectation to improve the scope of application of copyright fair use through legislative means does not always meet the needs of real judicial practice.Then,the judgment of the openness of the scope of application of copyright fair use mainly depends on the specific analysis of judges on the specific situation of the case.That is to say,even after the court finds that a certain kind of work use does not meet the statutory enumerated circumstances,if the work use can pass the examination of the general limited elements,then the work use may also be found to be copyright fair use.At the same time,judges may use the “four judgment elements” as reference factors to support the judgment of general limitation elements under the framework of general limitation elements.Online game live broadcast can be broadly divided into two categories,small game live broadcast for personal socialization of players and large competitive game live broadcast.Small-scale live game broadcasting is mainly to show the game skills,strategies and results of specific players or teams.The focus of the audience is on the intellectual communication and social expression of the game anchor,not on the original game picture,so the player’s personal social live game may meet the foreseeable situation of fair use.Large-scale competitive live broadcast,which cannot meet the requirement of reasonably foreseeable circumstances,but which can pass the examination of the general qualifying elements,also has the possibility of being recognized as copyright fair use. |
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