Research On The Fair Use Of Copyright In Video Game Live Broadcast

Video game live broadcasting is a kind of behavior based on the game itself,using technical means to spread the continuous dynamic pictures in the game,supplemented by the anchor’s own interpretation of the game pictures.Video game live broadcasting is produced with the rise of the live broadcasting industry.With the steady growth of China’s live broadcasting market,the scale of video game live broadcasting is also expanding.As an emerging industry,video game live broadcasting has not only developed rapidly,but also brought many legal problems.Whether the game picture used in the live broadcast process can constitute a work,what kind of work,and whether the live broadcast of electronic games can constitute a fair use of the game picture are different in different courts in the "fish fighting case" and "dream journey to the west 2 case".At present,there is no clear legislative provision in these aspects in China,and the situation of "different judgments in the same case" occurs from time to time.Therefore,these problems have become urgent problems to be solved and unified in judicial practice.The copyright law of the People’s Republic of China Copyright Law(2020)lists the specific circumstances constituting fair use in the way of listing the fair use system,and sets up a new disclosure clause,namely "other circumstances stipulated by laws and administrative regulations".The establishment of this disclosure clause makes it possible to explore whether live video games can constitute a fair use of video game pictures.There are still many deficiencies in the identification of the fair use of live video games in China.This paper analyzes that the judgment standards of fair use mainly include "three-step test method" and "four element analysis method",and holds that "transformative use" has been used as a case to judge whether it constitutes the standard of fair use in China’s current judicial practice.Compared with the "three-step test method",the "four factor analysis method" and "transformative use" focus more on the establishment of specific judgment elements in legislation,and quote the "four factor analysis method".Through the detailed classification of electronic games,it can provide a more accurate judgment method for whether the live broadcast of electronic games can constitute a reasonable use.On this basis,the article believes that it is more reasonable to regard the video game picture as an audio-visual work.To determine the fair use of the right of video game live broadcast,first of all,we need to carefully classify and analyze the game live broadcast according to the type of game.Secondly,it is necessary to improve the identification norms of fair use in copyright,clarify the originality standard of "audio-visual works",and learn from the four element rule of fair use in the United States.In addition,the principle of "balance of interests" should also be given due consideration in judicial practice.