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Copyright practice - CHINA: Are Video Games Works of Art?

Rick Tan | Sep 27 2021

This article was first published by INTA

Can random animations created by the player of a video game reflect the original creation of the game designers? Deliberation is pending in a case involving two game developers that will be an important reference for the determination of copyright in sandbox games (a video game in which the player is not constrained to achieving specific goals and that gives the player a great degree of creativity).

Background

Minecraft, a world-renowned sandbox game developed by the Swedish video game developer Mojang Studios, was first made public in May 2009 and fully released in November 2011. NetEase, Inc. (NetEase) acquired the exclusive license to market Minecraft in Mainland China in 2016, and officially launched the game in 2017.

Mini World: Block Art, a sandbox game developed and operated by Shenzhen Miniwan Technology Co., Ltd. (Miniwan), was launched in China in 2015. Both games have similar gameplay and objectives: players have to survive in a virtual world while building items within the world.

In 2019, NetEase sued Miniwan before the Shenzhen Intermediate People’s Court for copyright infringement and unfair competition, and sought RMB 50 million (USD 7.7 million) in damages. NetEase claimed that the designs, in-game mechanics, and graphics of Miniwan’s game were very similar to Minecraft. The court analyzed and compared the two games and found 267 elements in the infringing game to be identical or similar to those of Minecraft. In its first instance judgment issued in December 2020, the court awarded NetEase approximately RMB 21 million (USD 3.2 million) and ordered Miniwan to remove the 267 infringing elements.

Copyright Infringement?

Both parties appealed the first instance decision. Besides contentious points on the similarity of the construction, crafting, exploration, and combat mechanics in both games and unfair competition, controversy fell on whether the games, as such, could be considered as works of art similar to a film.

This is being treated as key in determining whether Mini World: Block Art constitutes an infringement of Minecraft as a whole. If the entire game is considered to be a single work, then the removal/rectification of some elements can hardly be said to have completely eliminated the infringement. NetEase’s appeal aims to ask for a larger amount of damages, and a more strategic pursuit would have been to ask for Mini World: Block Art to be taken off the market, rather than have only the infringing elements removed from the game. (Miniwan appealed the removal of the 267 elements mentioned in the first instance as it would affect the operation of the game. The company also pleaded non-infringement.)

NetEase argued that a player, using the virtual elements of the game and following the game rules, is creating animated images on the screen, constituting a visual and audible representation that is tangibly reproductible and therefore similar to a motion picture. By combining the virtual components, such as cubes, the player is in a position to create the appearance of mountains, rivers, and land, among other things. The players need to obtain specific cubes through the game’s pre-determined methods and the required items to survive and develop this virtual world by destroying or assembling them. Therefore, NetEase argued, the integration of many resources into the game by the designers resulted in the creation of an environment in which creative input produces work equivalent to a movie, and the player-generated video (that is, the movie) is creatively driven by NetEase’s ingenuity, not necessarily by the player.

Miniwan, on the contrary, argued that Minecraft, as a sandbox game, is more similar to the online Lego video game (than a film), with players building what they wish by using the components made available to them in the game. This being the case, the various animations of the game are not pre-arranged. Therefore, Miniwan argued, the game does not possess the minimum requirement for “arrangement” or “plot” for a work produced by a method similar to making a movie.

On July 27, 2021, Guangdong High People’s Court heard the case on appeal. The deliberation is pending.

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