| The online game live broadcast market has developed extremely rapidly in the past ten years.Behind the endless game live broadcast disputes are actually the competition for the interests of the game live broadcast market by anchors,game manufacturers,and live broadcast platforms.The legal issues behind the online game live broadcast industry have become increasingly prominent.How to resolve the conflicts arising from the distribution of interests in live games has attracted the wariness of the academic and judicial communities.There have been some judgments on game live broadcast disputes in judicial judgments,which have many merits.However,in the course of practice,the infringement judgment rules for online game live broadcasts are incomplete and the application of fair use rules still remains questionable.In addition,according to the current judgment standards,there is inevitably the suspicion of overprotecting the rights of game manufacturers.It is very important to balance the interests between the public and copyright holders.There are four chapters in this article to solve the above issues.The first chapter of this article first introduces the concepts involved in online game live broadcast,clarifies the concept of online game live broadcast,disserts the differences between the different screens.In addition,according to the types of games broadcast by the anchor,the existing game live broadcasts are divided into three types:plot,competition,and sandbox,and the differences between different online game live broadcast types are analyzed to further explore related infringement issues.It points out the three main problems involved in the current online game live broadcast infringement.First,the infringement judgment rules for online game live broadcast are incomplete and need to be further sorted out.Second,there are some doubts about the application of fair use rules,and different types of live broadcasts are in doubt.Third,according to the current judgment,the rights of game developers are suspected of overprotection.What mechanism can be introduced to solve the problem of imbalance of interests.The second chapter is to sort out some conceptual issues that are not sufficiently clear in the analysis,what kind of works should the online game screen belong to,who has the ownerships,what kind of exclusive rights are violated by the live broadcast,and which infringement determination should be used.This chapter argues that according to the characteristics,audiovisual works are the most suitable type,and the game manufacturers have the copyright.Analyzing the three exclusive rights from the aspects of legislative purpose,right constitutional elements,the live broadcast infringes on the copyright owner’s broadcasting right.Clarify the infringement identification standards related to online game live broadcast,and through detailed analysis of the standards,it is considered that the live broadcast of online games meets the determination of substantial similarity,and the live broadcast behavior meets the contact requirements,so that it can be determined to constitute an infringement.The third chapter is mainly to examine the online game live broadcast under the current fair use system,and analyze whether users can defend infringement through fair use rules.China’s fair use rules consist of Article 24 of the Copyright Law and Article21 of the Implementing Regulations of the Copyright Law,but they have certain limitations.The "four-factor inspection method" and "transformative use" are commonly used internationally for fair use analysis.This chapter first clarifies how these three different fair use determination paths are used in conjunction with our country’s judicial precedents,and then analyzes whether different types of online game live broadcasts constitute fair use,and determine in which live broadcast situations the game live broadcast constitutes fair use.The analysis of the first two sections shows that due to the limitations of fair use rules,it is difficult for online game live broadcasts to apply the fair use system to defend against infringement.This has led to an imbalance of interests,and there is an urgent need to introduce other rights restrictions system to solve this problem.Finally,the fourth chapter aims to create a new licensing system for those types of live broadcasts that cannot constitute fair use to solve the problem of the imbalance between the interests of game rights holders and users.This chapter believes that constructing a statutory licensing system for online game live broadcasts can effectively solve the problem of imbalances.In the first section,i discuss the rationality of introducing statutory licensing.From the perspective of the legislative value of the statutory licensing system,the system was created to cope with the conflict of interest between right holders and users in emerging industries,and the introduction of this system conforms to the analysis of law and economics.Secondly,in the second section,the statutory licensing system is compared with the three licensing systems of centralized licensing,compulsory licensing,and public licensing,and the analysis shows that statutory licensing is the most suitable licensing system for online game live broadcasts.In the last two sections,from the scope of application and the calculation standard of statutory license fees,the statutory license related regulations for online game live broadcast are further constructed in detail,excluding the statutory license for pure story game live broadcast and e-sports live broadcast,and it is recommended to use a fixed ratio to calculate the statutory Licensing fees,give game developers reasonable compensation. |
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