In the preceding article New Trends in Game Skin-Replacement Lawsuits from the Mini World Case

(Click the blue text to jump and read), the author focused on analyzing the innovative adjudicative approach of the Guangdong High Court’s Judgment No. 1035 regarding the protection of game rules and mechanics. Notably, Judgment No. 1035 did not support NetEase’s request to order Mini World to cease operating the game. Instead, it only ordered the deletion of 230 game resources/elements from Mini World. This differs from many previous overall game infringement cases, and the reasoning and concept embodied in this judgment are equally worthy of attention.

01

Proportionality—Judgment No. 1035 ordered Mini World to delete 230 game resources/elements without directly ordering the cessation of Mini World’s operation, setting a model for applying the principle of proportionality in intellectual property adjudication.

(I) Proportionality is a basic rule to be followed in intellectual property adjudication

The principle of proportionality is an important principle commonly adopted by civil law countries to limit the discretionary power of public authorities. Its purpose is to prevent state power from exceeding necessary limits when restricting citizens’ rights. In the development of this principle, the principle of proportionality has ultimately formed three sub-principles: appropriateness, necessity, and proportionality (balancing).

In recent years, the principle of proportionality has gradually been introduced into civil judicial adjudication.

At the 2016 National Court Intellectual Property Adjudication Work Symposium, Vice President Tao Kaiyuan of the Supreme People’s Court, based on reviewing past successful experiences and analyzing new domestic and international situations and tasks, proposed four fundamental judicial policies to be followed in intellectual property judicial protection: “judicial leadership, strict protection, classified measures, and proportional coordination.” Among these, “proportional coordination” means reasonably determining the scope and intensity of protection for intellectual property in different fields. It requires distinguishing different situations and appropriately granting protection and determining compensation based on the nature and effect of the infringement and the degree of subjective malice of the infringer. It also requires ensuring that intellectual property protection conforms to development laws, national conditions, and development needs, and reasonably balancing the rights and interests of intellectual property holders, other right holders, and the public interest and national interest according to law. As a judicial policy, the core essence of “proportional coordination” is consistent with the principle of proportionality originating from public law, requiring the appropriateness, necessity, and proportionality of judicial measures, while upholding the balance of interests among right holders, infringers, and the public. The above principle is reflected in multiple areas of intellectual property. For example, Article 26 of the “Interpretation (II) of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases” provides that where the defendant constitutes patent infringement and the right holder requests an order to cease infringement, the people’s court shall support it. However, based on considerations of national interest or public interest, the people’s court may not order the defendant to cease the challenged act but may order it to pay appropriate reasonable fees. This provision, which allows the infringer to continue using the patented technology under specific circumstances, is a concrete manifestation of the principle of proportionality in the field of intellectual property adjudication.

In fact, the Guangdong High Court, in its “Guidelines for the Adjudication of Intellectual Property Civil Dispute Cases Concerning Online Games (Trial)” [Yue Gao Fa Fa (2020) No. 3], proposed that the principle of proportionality should be adhered to in the judicial protection of online games. For example, Article 11 of the Guidelines provides: “The review of behavioral preservation applications shall follow the principle of proportionality, reasonably balancing the interests of the applicant and the respondent. Behavioral preservation measures generally should not be granted under the following circumstances: (1) the damage caused to the respondent by the preservation measure clearly exceeds the civil liability the respondent may bear in the case; (2) the damage caused to the respondent by the preservation measure clearly exceeds the damage caused to the applicant by not taking the preservation measure; (3) other circumstances leading to a clear imbalance of interests.” In the relevant explanation of the above Guidelines, the Guangdong High Court further explained: As an emerging industry, apart from a few enterprises that have seized the first-mover advantage and obtained large market shares, most enterprises are small enterprises just entering the field, with substantial investments and fierce competition. The implementation of behavioral preservation not only leads to the cessation of operation of the involved game but may also have a significant impact on the development or even survival of related enterprises. Considering the characteristics of the game industry, when reviewing whether to grant behavioral preservation, the impact on various parties should be reasonably assessed based on the principle of proportionality to determine whether the behavioral preservation measure conforms to the original intent of the system. The principle of proportionality essentially embodies the principle of fairness, reasonableness, and balance of interests. By examining the relationship between means and ends, it aims to achieve the effect of “prohibiting excess” to maintain substantive justice under the law.

(II) Judgment No. 1035 did not directly order the cessation of Mini World’s operation but only ordered Mini World to delete 230 game resources/elements—a vivid practice of the proportionality principle in intellectual property adjudication.

Specifically in this case, regarding the specific method of ceasing infringement, Judgment No. 1035 held that: Determining the specific method of ceasing infringement requires comprehensive analysis based on the specific circumstances of the case, providing full relief to the injured party while also balancing the legitimate interests of the infringer and the player community. Specifically, in addition to considering the possibility of rectification, noteworthy factors considered in the judgment include:

First, game characteristics.

Judgment No. 1035 held that: The involved games are “survival-construction” sandbox games, with game elements as the basis for gameplay design. High自由度 in gameplay is their characteristic and also their selling point for attracting players. Particularly in creative mode, players can build virtual worlds using numerous game elements according to their own ideas, some of which may form original expression. The “Mini Workshop” in Mini World is a collection platform for user-generated content (UGC), containing a large number of player-created new maps or other artistic works, which also have value worth protecting under the law. The copyright of this content may be independently owned by the player or jointly owned by the player and the game developer, representing the legitimate interests of the player community, which should not be overlooked.

Second, the proportion of infringing content.

Judgment No. 1035 held that: Although Mini World copied the game elements and their combination designs from Minecraft, it was not an all-encompassing,全方位 plagiarism. At the very least, the overall game graphics of the two are not substantially similar, and the above-mentioned user-generated content also occupies a considerable proportion. Additionally, Mini World has its own innovations, such as the artistic images of game elements and other visual effects, which have their own characteristics. Online games typically undergo content updates and iterations. Mini World, after multiple updates, gradually added some content entirely unrelated to Minecraft’s game elements, which has diluted the proportion of infringing content in the latest version of the game to a considerable extent.

Finally, consideration of the possibility of rectification.

Judgment No. 1035 held that: Based on the update content of Mini World across its versions, deleting or modifying some game elements is not difficult to achieve in terms of implementation methods and would not cause the game to be completely unable to operate normally.

In summary, Judgment No. 1035 held that:

The assumption of civil liability should be proportional to the damage caused. The specific method of ceasing infringement should be limited to stopping the ongoing infringement and preventing further expansion of damage. Simply ordering Mini World to cease operating would likely result in a significant imbalance of interests between the parties or damage to the interests of the consumer group. Ultimately, comprehensively considering factors such as game type characteristics, the proportion of infringing content, and the possibility of rectification, the judgment determined that the specific method for Mini World to bear the responsibility of ceasing infringement would be to delete the 230 infringing game resources/elements (70 basic elements, 151合成 elements, and 9 biological elements) from Mini World. It did not support NetEase’s claim that Mini World should be ordered to cease operation. Clearly, Judgment No. 1035, regarding the specific method of ceasing infringement, based on the facts of the case, bravely broke through traditional thinking and did not惯性地 order the infringing game to cease operation. It fully considered the protection of the right holder’s rights while also balancing the legitimate interests of the infringer and the player community, setting a model for applying the proportionality principle in the field of game litigation.

(III) Specific content and implementation issues of deleting infringing elements

As mentioned above, Judgment No. 1035 comprehensively considered various factors and determined that Mini World’s specific method of ceasing infringement would be “deleting the 230 infringing game resources/elements (70 basic elements, 151合成 elements, and 9 biological elements) from Mini World.” Although the judgment attached a table comparing the similarity of the relevant elements/resources, disputes may still arise between the parties regarding what degree of deletion constitutes performance of the judgment obligation. Based on the content disclosed in the first- and second-instance judgments and the adjudicative rules established in similar cases, the author attempts to analyze as follows:

1. The deleted element content should not include element names and element appearance images.

First, element names generally cannot constitute original expression under copyright law and cannot be independently protected. For example, in the “Alad’s Wrath” case, the court held that skill names, equipment names, and monster names “due to extremely limited expression content, if taken out of the game context, can hardly be regarded as independent works fully expressing the author’s thoughts,” and determined that the above names themselves did not constitute literary works and could not be independently protected.

Second, the element names listed in the judgment’s appendix, such as chicken, cow, sheep, fruit tree, wild fruit, etc., are names of plants and animals that already commonly exist in nature. Minecraft cannot monopolize these names and expressions.

Third, from the comparison of element artistic images, some elements listed in the appendix have巨大 differences in artistic images, such as Savage (Mini World) and Zombie (Minecraft), Beast Hunter (Mini World) and Skeleton Archer (Minecraft), etc. Where the artistic images of elements are not substantially similar, the judgment could not possibly require Mini World to delete element appearances that are not similar.

Finally, the first-instance judgment in this case, in the substantial similarity comparison section, explicitly stated that “what the plaintiff claims protection for is not the literary works of element naming in the game, nor the artistic works of element images in the game,” further proving that NetEase’s claimed protection content does not include element names and their appearance images. Judgment No. 1035, when summarizing the disputed焦点, also pointed out: “This disputed焦点 involves whether Mini World conducted ‘skin replacement’ (copying gameplay rules while replacing artistic materials) for Minecraft by overall plagiarism of game elements,” again confirming that the elements Judgment No. 1035 ordered to be deleted do not include the names, artistic images, or other appearance designs of the listed elements.

2. The elements to be deleted under Judgment No. 1035 should refer to content that is substantially similar between the two games in terms of the specific design of game rules and mechanics, specifically包括 design content that is substantially similar in terms of element functions and uses, methods of acquisition,合成 rules, numerical attributes (if any), etc., as well as design content that is substantially similar in terms of the element组合系统 (the relationships and耦合 relationships between game elements).

Judgment No. 1035 pointed out: The two involved games present gameplay rules through game elements and their combination designs. Therefore, analyzing the similarity of gameplay rules cannot孤立地 compare单一 game elements or their single-dimensional attribute designs; otherwise, the gameplay要素 system formed by the combination of multiple game elements would be fragmented. In specific comparison, it is necessary to comprehensively consider not only the element names, artistic images, functions and uses, methods of acquisition,合成 rules, numerical attributes (if any), and other design aspects but also the correlations and coupling relationships between game elements (i.e., the game element组合体系). Furthermore, the similarity analysis at the gameplay rules level cannot detach from the player’s gaming experience. Especially for this type of game, the player’s gaming experience depends on the series of game behaviors such as collection,合成, smelting, and construction that the player must undergo. Therefore, it is also necessary to consider the necessary steps or processes for players to experience a particular gameplay—often reflected in the game’s progressive development脉络 from low-level resources/elements to high-level resources/elements.

In the similarity comparison opinions listed in the judgment’s appendix, the judgment mainly discusses relevant similarity opinions from the perspectives of functions and uses, methods of acquisition,合成 rules, numerical attributes, etc. For example, the comparison opinion for the sheep element in the appendix notes: In both games, wheat can be used to feed sheep, while in reality, sheep feed is generally grass. The game also allows direct use of dye to color sheep and shear them to obtain colored wool. The method of killing is the same—holding a weapon and clicking on the sheep a certain number of times causes the sheep to disappear, indicating death. This proves that as long as Mini World adjusts the functions and uses, methods of acquisition,合成 rules, numerical attributes, etc., of the above elements and the combination relationships between elements such that differences emerge between the two, Mini World would have fulfilled the deletion obligation imposed by the judgment.

The author notes that in the current version of Mini World, Mini World has already deleted some of the elements listed in Judgment No. 1035 as required by the judgment. At the same time, it has adjusted and reworked the production rules, drop methods, growth rules, and corresponding relationships of some elements. For example, regarding the dyeing resources claimed by the plaintiff, which were originally obtained directly with 16 color values, the new game version has reworked the合成 pathway for dye resources, adding a palette function to handle dyes. Dyeing resources are now obtained through color mixing. The specific steps are: first, use the palette for color mixing, then bottle the dye with a dye bottle, and finally use the dye bottle for dyeing. In creative mode, the color values have been adjusted to 256. This adjustment affects the specific gameplay of over 40 involved elements. The modified element gameplay is completely different from the game version in the complaint. Additionally, at the tree level, some trees have been deleted while extensive adjustments have been made to tree production rules, growth rules, fruit rules, and tree types (e.g., production rules: i. unified drop after chopping: timber, no longer dropping tree trunks; timber is used to process various tools and items; ii. to obtain tree trunks, a rune is needed for complete acquisition; tree trunks can only be used for decoration and are no longer合成 raw materials). In modifications similar to those above, the elements themselves and their use and gameplay aspects are no longer similar to the relevant designs in Minecraft. The author believes that similar modifications by Mini World to the involved elements have achieved the effect of deleting substantially similar specific designs of gameplay rules and can be considered performance of the judgment obligation.

02

Forward-Looking and Reasonable—Judgment No. 1035 Fully Considers User Interests in Game UGC, Reserving Ample Space for the Future Development of Online Games.

Regarding the ownership of intellectual property in players’ in-game roles and creative content, there are multiple different views in practice. The main arguments for attributing the copyright of overall game graphics to the game developer include: (1) Game graphics are the result of the game software’s own operation; therefore, it is the game developer, not the player, who created the game graphics, and the copyright naturally belongs to the game developer. (2) Although overall game graphics are gradually presented through the player’s operation, these graphics are within the预设 range of the developer’s game program. The player’s operation merely objectively presents pre-designed content; therefore, the copyright of the overall game graphics belongs to the game developer. (3) The player’s operation is a technical, practical, functional behavior aimed at efficiency. Playing the game is for entertainment or competition, not for creation. Due to the subjective lack of creative intent, the copyright of the overall game graphics should belong to the game developer. For example, in the case (2019) Yue 0192 Min Chu No. 1756, the court held that: “The overall game graphics are formed by the computer software (game engine) mobilizing game elements; therefore, they are still within the预设 range of the game developer and are part of the overall game. Game users cannot create new content beyond this.” “Game users, by mobilizing game elements in the game resource library through the game engine, operate within the overall logical framework set by the game creator. Their role is merely to transform the virtual, non-perceivable continuous activity graphics contained in the game into visually perceivable continuous activity graphics. Essentially, this is merely reproducing certain game graphics from invisible to visible. In this reproduction process, although game users have some initiative, initiative does not equal originality. No matter how many types of continuous activity graphics the game user reproduces, the game combining the original game engine and game resource library remains identical. Game users have neither created any original new game elements nor created any original new continuous activity graphics that can be separately separated from the game. Therefore, game users have not contributed original labor in the copyright sense to either the internal game engine and game resource library or the external audiovisual continuous activity graphics embodying the game content.”

The main arguments for attributing the copyright (neighboring rights) of overall game graphics to the game player include:

(1) Online games are essentially just a tool for creation. The player’s interactive operation is a creative act, and the copyright of the overall game graphics should be independently owned by the game player. (2) Although the player’s operation of the game can be regarded as creation, this creative act utilizes the game resources preset by the developer in the game program. Therefore, the overall game graphics can be regarded as the player’s derivative work, and the player can own the copyright thereof, or the player can share the copyright as a co-author with the game developer. (3) The player’s operation can, under certain conditions, constitute a performance. In such circumstances, the player may enjoy performer’s rights over the overall game graphics. (4) When the player’s operation cannot constitute derivative creation or performance, the player’s operation is an act of disseminating the game work, and the player should enjoy the right of a video producer. For example, in the case (2019) Yue 0192 Min Chu No. 1756, the defendant argued that “the rights to game videos formed by players operating game graphics belong to the game users and video creators” and pointed out that “although the game sets limitations and authority for each player character, it cannot accurately predict the formation of game operation graphics. Because the game developer cannot事先 predict the final呈现 effect of the game operation graphics and did not participate in the actual operation process of the game graphics, it clearly had no creative intent regarding the formation of the game operation graphics and should not be the main right holder of the game operation graphics. At the same time, when users create game videos, they undoubtedly contribute creative labor and人力 and financial resources to the formation of the game graphics and game videos, which is sufficient to constitute creation in the copyright sense and should be protected.”

The author believes

that whether players can enjoy intellectual property rights over in-game content cannot be generalized and should be distinguished based on the specific circumstances. If the game leaves ample room for个性化 expression and creativity in the player’s operation, the player may create original works. Taking Minecraft as an example, a sandbox game, in its creative mode, the game provides players with various basic building materials. Players can use these basic materials to create various structures. At this point, the materials and resources provided by the game to players are like the basic “building blocks” in LEGO. The最终呈现 architectural form (graphic content) is created by the user and is not within the game’s预设 range. In some cases, the player’s conduct constitutes creative conduct, and they can own intellectual property rights over the relevant graphic content.

Moreover, in addition to allowing players to build worlds using the materials provided by the game, Minecraft also allows players to create their own materials and use them for creation. For example, the game allows players to upload self-made materials to change the game character’s skin and game background. Clearly, game players own intellectual property rights over these self-made materials.

In fact, regarding user-created game content, Minecraft’s user agreement has already stipulated that the relevant content may be co-owned by the game right holder and the user or independently owned by the user. For example, Article 4 of the game’s user agreement provides: “The intellectual property rights and ownership of materials/content (hereinafter ‘User Adapted Materials’) created by users based on any content authorized by NetEase, including but not limited to Minecraft game and game materials provided by NetEase, shall be co-owned by NetEase and the user. NetEase has the right to independently or authorize its affiliates or third parties to reproduce, distribute, issue, lease, exhibit, perform, broadcast, modify, adapt, sublicense, disseminate through information networks, and use the above User Adapted Materials to create derivative works, either separately or as part of the overall game. Except for User Adapted Materials, users own all intellectual property rights (including but not limited to computer software copyright, artistic work copyright, and patent rights involved) in independently produced game materials (‘User Materials’).” Similarly, Mini World, also a sandbox game, stipulates in Article 10 of its “Game License and Service Agreement”: “The user confirms and agrees: The intellectual property rights of maps, architectural models, game mods, music, character images, comics, and all other content (‘Adapted Content’) produced, created, or uploaded by the user based on elements, materials, or other content provided by Mini World shall be owned by the user if such content constitutes original works under relevant legal provisions. When exercising their rights over Adapted Content for which they own intellectual property rights, users shall not infringe upon the copyright and other rights and interests owned by Mini World. For original content (‘Original Content’) independently produced, created, or uploaded by users using only the tools provided by Mini World, users own corresponding intellectual property rights under legal provisions.”

In light of this, the Guangdong High Court, in Article 20 of its “Guidelines for the Adjudication of Intellectual Property Civil Dispute Cases Concerning Online Games,” provides: “If the game graphics are automatically generated by the game program based on the player’s operation instructions calling preset game elements according to established rules, the user’s operation does not constitute a creative act and does not affect the qualitative determination of the game graphics. If the game reserves creative space for users and provides creative tools, and game users create other expressive elements beyond the game’s预设 audiovisual expression scope, and the relevant creative results meet the constituent elements of a work, the game user, as the author of the relevant creative results, owns the corresponding copyright.”

In the drafting explanation of this provision, the court further explained: Currently, most online games do not provide sufficient room for个性化 expression and creation for game users. The character images, equipment items, skill animations, text patterns, music and sound effects, and other materials appearing in game graphics are all designed and completed by the game developer and stored and fixed in the game resource library. Game users follow established game rules and processes to play and cannot arbitrarily add materials not present in the game. Therefore, even the social interaction or competitive graphics between players mostly fall within the various possibilities预设 by the game developer through design and repeated testing. At this point, when players run the game, they are merely demonstrating their game strategy skills and proficiency level, making it difficult to form new original expression constituting new works. In such circumstances, it should be determined that the game developer, rather than the game user, is the copyright holder of the game’s continuous dynamic graphics. However, the possibility of future “highly自由化” online games cannot be excluded. For example, if the game only sets simple rules and provides basic material tools, leaving other game content for players to freely explore, or even opens a storyline or map editor, allowing and encouraging players to create new game content, the possibility that players may create new works with original expression cannot be ruled out. In the absence of contrary agreements, players own corresponding copyright over the new works they create.

Specifically in this case, when Judgment No. 1035 determined Mini World’s specific method of bearing the responsibility to cease infringement, it also specifically mentioned that “the involved games are ‘survival-construction’ sandbox games. High自由度 in gameplay is their characteristic, especially in creative mode, where players can build virtual worlds using numerous game elements according to their own ideas, some of which may form original expression. The ‘Mini Workshop’ in Mini World is a collection platform for user-generated content (UGC), containing a large number of player-created new maps or other artistic works, which also have value worth protecting under the law. The copyright of this content may be independently owned by the player or jointly owned by the player and the game developer, representing the legitimate interests of the player community, which should not be overlooked.” This fully affirms and considers the user interests in game UGC, reserving ample space for the future development of online games.

In fact, UGC has a long history in the field of online games.

The once-popular game “Tank Battle” had a CONSTRUCTION mode that allowed players to design their own levels and challenge themselves. The powerful map editor WarCraft III World Editor included with “Warcraft III” allowed users to customize maps, enabling users to start creating their own games. The classic e-sports game “Counter-Strike” also provided its own map editing tools, giving rise to classic battle maps such as IceWorld and BloodStrike. Sandbox games like Minecraft have further developed UGC. Game developers merely provide basic material tools and simple game rules, leaving endless space for players to freely play. SuperCell’s “Clash of Clans” took UGC to a new level—players could experience different level designs and gameplay by challenging other players’ different base layouts. Moreover, the development of game mod (MOD) technology has made it possible for game players to participate in game design. For example, the popular games “SnowRunner” and “Skater XL” have deep mod integration. MOD creators make their MODs and upload their works to the game page for players to download and use. Once players set up, they can play the customized content game in their own way.

With the emergence of the metaverse concept, game UGC will also become a new trend.

On the one hand, Generation Z has become the mainstream user of the Internet. They emphasize self-awareness, value participation, and are more willing to transform their creativity into virtual scenes and gameplay on game platforms. UGC has a good user foundation. On the other hand, UGC also offers a possible solution to the increasingly high development costs in the current game industry. Through the UGC model, it is entirely possible to produce game content that is no less than the best independently developed by companies. DOTA, which originated from “World of Warcraft,” is the best example. Furthermore, UGC can create better interaction between game developers and players, better extend the game’s life cycle, and achieve a win-win situation for both game developers and players.

Therefore, how to objectively view players’ creative behavior in games and how to balance the interests of game developers and players are major issues that must be addressed in the development of the game industry. Judgment No. 1035 deeply洞察 the development laws of the game industry, thoroughly analyzes the characteristic of high自由度 for users of the involved sandbox game, confirms the rule that UGC content copyright may be independently owned by players or jointly owned by players and game developers, provides guidance for regulating the development of UGC in future games, and reserves space, reflecting the adjudicator’s fact-based judicial wisdom.

References

[1] See Ni Zhuliang’s article “Application of the Proportionality Principle in Determining Punitive Damages in Intellectual Property”

[2] See Tao Kaiyuan’s speech “Strengthening Policy Guidance, Comprehensively Promoting ‘Three-in-One,’ and Giving Full Play to the Leading Role of Judicial Protection of Intellectual Property”

[3] See the Guangdong High Court’s Guidelines for the Adjudication of Intellectual Property Civil Dispute Cases Concerning Online Games (Trial)

[4] See (2017) Xiang 01 Min Chu No. 4883

[5] See (2019) Yue 03 Min Chu No. 2157

[6] See Second-Instance Judgment, p. 107, para. 1

[7] See Jiao Heping’s article “Ownership of Copyright in Overall Graphics of Sandbox Building Games”

[8] See (2019) Yue 0192 Min Chu No. 1756

[9] See “NetEase Game License and Service Agreement”

[10] See “Mini World Game License and Service Agreement”