| With the continuous development of the Internet,online games are full of our life.With the continuous increase of online games,it will be found that these games are more and more similar and have lost their characteristics.And with the coming of IP craze,online games attached to Hot IP are also emerging,and online games using the same characters,weapons and skills are emerging one after another.Between 2015 and 2017,there were two cases of infringement in online games which have the same plaintiff and the similar facts,but the verdicts were widely different--infringe the right of adaptation and unfair competition.During this period,the same thing happened in Shanghai.Why are there different torts in court decisions when the defendant ACTS the same or similar? The reason may be that these ACTS are not adaptations.However,the court held that these ACTS should be prohibited,but there was no specific legal clause,so article 2 of the anti-unfair competition law was applied.The basis of the court's decision may contribute to the stability of the market,but the general clause of the anti-unfair competition law applicable to this type of online game infringement cases of the standard is not accurate.This paper is divided into four parts to discuss,trying to find out the factors considered by the court when it applies the general clause of the anti-unfair competition law in the online game infringement cases.The first part mainly determines the types of cases discussed in this paper and introduces the changes in the application of online game infringement cases.There are many different kinds of cases of infringement of online games,in this paper,it is difficult to cover all,only selected those online games which use works elements,and points out the change in the application of law,to draw out the value of writing.The second part mainly discusses the reasons why the copyright law is not applicable to such online game infringement cases.In those cases,the alleged network games using the elements of earlier works.If based on copyright law,plaintiffs need to prove that the elements of the work are protected by copyright law.However,the criteria for the protection of copyright law are vague,and Judges have different views.So,there are problems in applying copyright law to such cases.When the plaintiff thinks the action sued infringes the adaptation rights,the court's determination is also different.As a result,the decisions in such cases are inconsistent.The third part mainly elaborates the necessity of introducing the general clause of the anti-unfair competition law into the online game infringement cases.As the market is dynamic and developing,traditional intellectual property law cannot protect all intellectual products.Therefore,it is necessary to find other ways to protect intellectual products which are not protected by intellectual property law.The relationship between anti-unfair competition law and intellectual property law has a long history,and the anti-unfair competition law of various countries is also closely related to the protection of intellectual property rights,which lays a foundation for the introduction of anti-unfair competition law into such online game infringement cases.The application of anti-unfair competition law in online game infringement cases is beneficial to strengthen the protection of intellectual products.The application of online games to the elements of works does not belong to the specific ACTS of unfair competition stipulated in China's anti-unfair competition law.Therefore,consideration should be given to the general clause.The fourth part mainly discusses the problems and solutions in such cases.First,introduced the typical case,and expounds the judicial application status of general provisions of the anti-unfair competition law.Then the legal analysis,it expounds the problems that should be paied attention to when the general clause of the anti-unfair competition law are apllied.Finally,make some suggestions. |
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