On The Protection Of Virtual Characters From The Perspective Of Copyright

There are still many uncertainties about the legal protection of virtual characters in China.Under the current copyright law system in China,virtual characters themselves are not copyrightable,that is,they cannot be protected by corresponding laws as an independent type of work.In practice,judges often protect virtual characters as a kind of art work,while the elements such as character,attitude,posture and language,which are part of the characters,are often ignored in the copyright law system.This is understandable.The reasons why the above elements are not protected by the copyright law are mainly based on two points: first,based on the principle of "dichotomy of thought expression",the copyright law does not protect ideas,The constituent elements of virtual roles are often too abstract to be recognized as an original expression,thus being protected by copyright law;second,Most of the constituent elements of roles are taken from nature or society,which means that such constituent elements are mostly related to the expression of public domain,which is difficult to be recognized as original.However,other components of virtual roles,including names,sounds and other elements that are not protected by copyright law,can still be regulated by other laws.For this reason,some scholars have issued the voice of establishing a commercialization right system to provide a more complete judicial protection environment for virtual roles.However,whether the concept of merchandising right is a right type or a right has not been clarified by the scholars who put forward corresponding voices.At the same time,how to classify merchandising right in the existing legal system is also a major issue.According to the current academic point of view,the creation and improvement of the protection system of virtual roles are mostly focused on the construction of merchandising rights,and are separated from the copyright law itself,which is the source of virtual roles.This is no different from building an attic in the air,and lacks the corresponding right basis.On the other hand,the protection of virtual characters is also conducive to the secondary creation of the work of the same person.At the 31 st meeting of the Standing Committee of the 13 th National People’s Congress,the Supreme People’s Court issued the "Report of the Supreme People’s Court on the Work of the People’s Court on the Trial of Intellectual Property Rights",which clearly pointed out that "to try cases of copyright and unfair competition in the works of the same person according to law,protect the legitimate rights and interests of the first authors and those who have obtained legal authorization to disseminate,and clarify the legal boundary for ’second creation’",And "actively explore the protection of commercialized rights and interests,protect well-known works names,role names and other elements of works as prior rights and interests,and broaden the judicial protection of literary and artistic works and cultural and creative achievements".The legal protection of virtual character image currently faces two major problems,namely,the identification of virtual character image’s substantive similarity(the "secondary creation" mentioned in the Report),and the problem of the commercial use and protection mode of virtual character image.The establishment of the protection path for the use of virtual role copyright is conducive to protecting the property interests of copyright owners,regulating market competition behavior,and also meets the requirements of the legalization of intellectual property protection in China.At the same time,the protection of various elements of virtual roles is often divorced from the copyright law itself in the current legal system.In particular,in the case of virtual role infringement,in order to include the role elements created by the obligee into the scope of legal protection,the obligee mostly uses the "confusion act" specified in Article 6 of the Anti-Unfair Competition Law as the legal basis for infringement,while ignoring the protection of copyright law,but the Anti-Unfair Competition Law is actually an economic law,whose function is to stop unfair competition,It does not clear the boundary for the protection scope of virtual characters.This paper starts with the copyrightability of virtual role protection and the nature of virtual role,compares the protection system within the domain with the case outside the domain,and puts forward suggestions for improving the design of virtual role copyright protection system.