Research On The Determination Of Copyright Infringement Of Online Game Live Broadcasting

As a new thing arising from the combination of online games and live broadcast on the Internet,live broadcast of online games has developed rapidly since its birth.According to statistics,the market size of live broadcast of games in China in 2021 will be 30.59 billion yuan,with a year-on-year growth of 38.1%.Live broadcast of online games has become an indispensable part of the cultural and entertainment industry.With the development of live broadcast of online games,some industrial disputes also emerged,including the debate on whether the act of directly broadcasting online games on the platform without the authorization of the game company constitutes copyright infringement.As the live broadcast of online games is still a new thing,the legal position of the existing copyright law on the live broadcast of online games and the live broadcast screen of online games is not clear,which will lead to a series of differences of views: first,there is a dispute over the work attribute of the live broadcast screen of online games,and then there is a dispute over the ownership of the live broadcast of online games,as well as the legal attribute of the live broadcast of online games,Finally,there is a dispute about the determination standard of reasonable use in such cases.Compared with countries with developed online game live broadcasting industry outside the region,it reflects some problems existing in the court’s judgment of online game live broadcasting infringement.On the basis of drawing on the relatively mature experience of foreign countries,combined with the provisions of China’s intellectual property law and the specific conditions of online game live broadcast,the specific criteria for determining the copyright infringement of online game live broadcast are as follows: First,whether the live video of online games can constitute works and what types of works should be distinguished according to the types of games.The live video hosts of competitive games have no original input,and in the form of expression,it is a continuous dynamic picture of accompanying sound,so it constitutes a video product.The live broadcast of drama games is also just to show all the artistic beauty of the game itself and the content of the game story.It also has no original investment,so it can only constitute a video product.Part of the freedom is relatively high.Players are allowed to use game materials to create sandbox games with artistic beauty 3D models.Players’ operation behavior is deductive.The live screen of online games constitutes deductive works,which are copyrighted by the anchor.For a game with a high degree of freedom that allows players to create works independently,the live screen of online games constitutes an independent work,and the anchor enjoys copyright independently.The revised copyright law has revised the definition of broadcasting right,confirmed the broadcasting mode of direct transmission of works by wire,and provided a legal basis for the inclusion of webcast into the scope of broadcasting right.When judging whether the live broadcast of games belongs to rational use,we need to use the "four element standard" formed in the United States for reference.At the same time,according to the specific type of live broadcast of games,we can classify and discuss that the live broadcast of competitive online games has obvious transformative characteristics,and will not affect the market interests of game works.It constitutes reasonable use.The content of live broadcast of scenario online games is mainly to display the content of the game itself,so it does not have transformative characteristics,Moreover,it will form a substitution relationship with the game works,which will affect the market value of the game works.Therefore,it is not a fair use,and the live broadcast of scenario games without the permission of the game manufacturer constitutes copyright infringement.