| The online game live broadcasting industry has developed rapidly in recent years with the support of Internet technology.This has been accompanied by an increase in related copyright infringement disputes.Since the China's first online game live broadcasting copyright infringement case"Yaoyu v.Douyu" appeared in 2015,not only the academia has different opinions on the definition of the properties of related works and the ownership of rights,but also judgments in judicial practice have differences,and even the phenomenon of "different judgments in the same case"appears.Therefore,it is urgent to study the relevant copyright property to make up for deficiencies of the legal system's protection of industry development.By explaining the concept of online game live broadcasting picture,it is clear that the online game live broadcasting picture is a combination of online game picture and anchor contribution picture.And the online game pictures are divided into dynamic and static states for analysis in a splitting mode,at the same time,emphasizing the difference between dynamic pictures in creative and non-creative games,and demonstrating that the static pictures of online games constitute "art works",while the non-creative dynamic pictures constitute "movie works",and the creative dynamic pictures constitute "compiled works".According to the different contributions of the anchors,the online game live broadcasting pictures are divided into three categories:the mechanical broadcasting of the online game pictures by the anchor,the original compilation of the online game pictures by the anchor;and the live broadcasting pictures of large-scale game events.The above three types of live pictures constitute "video products","compiled works" and "movie-like works",except for the third type itself,which has been authorized and enjoyed,requires the consent of the copyright owner of the online game pictures before it can be used.The copyright of online game live broadcasting pictures is not subject to the "Broadcasting right" and "network dissemination of information right",but to the "other rights that should be had by the copyright owner" as stipulated in Article 10 of the Copyright Law of the People's Republic of China.The Copyright Law of the People's Republic of China now recognizes fair use with 12 closed enumeration provisions in Article 22,however,it lags behind the development of reality.By quoting the "four elements"identification standard and analyzing it in the case of "NetEase v.Huaduo",it is concluded that the online game live broadcasting behavior does not constitute a fair use.Based on a summary of the current legislative content and judicial cases of related fields in China,the author analyzes three shortcomings of copyright protection in the field of Online game live broadcasting pictures:the lack of regulations on the legal nature of online game pictures,the unclear rights properties of online game live broadcasting pictures,and the standard of fair use identification is not detailed enough.In view of this,combining the legislative content of the Copyright Law of the People's Republic of China(revised draft to be submitted for review)and drawing on extraterritorial experience,advice of it have been proposed including makes clear the legal nature of online game pictures,defines the rights properties of online game live broadcasting pictures,and refines the identification standard of fair use. |
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