Comment On The Case Of Netease V. Huaduo Infringement Of Copyrightand And Unfair Competition

The online games account for the sudden meteoric rise in this age of accelerating internet,so does the Online Game Live(OGL).However,the regulation about the OGL in Copyright Law is almost a blank,which leads to the disputes concerning the OGL aren't resolved effectively.NetEase's lawsuit against Huaduo involves two major Internet companies in China's live broadcast industry,its judicial judgment plays an important leading role in the live game industry of our country.In our country,the category of copyright object is delineated by enumerating method,and online game is classified as cinematographic works in the judicial practice of our country because of its similarity with film.The classification method can not reflect the "interactive" characteristics of the network game,and therefore,the reasonable protection mode can not be established according to the characteristics of the network game."Audio-visual work" can be used as the upper concept of "film work" to include the type of "online game",and the way of protection does not need to refer to the film but directly takes into account the various characteristics of the online game itself.Rational use is an important system in copyright law,but the application of reasonable use system is very conservative in the judicial practice of our country.Whether it constitutes a reasonable use is mainly considered from the aspects of the degree of use,the purpose of use and the balance of interests.The online game picture is presented in the form of live broadcast,which condenses the intelligence of the live announcer,and the main factor of obtaining the income lies in the deduction of the direct broadcast rather than in the online game itself.Second,live broadcast will not only have no negative impact on the market of the online game itself,but also promote the spread of the game,so it should constitute a reasonable use.The court of our country infringes on the copyright of online games by means of live broadcast.The estimation basis of the amount of tort compensation is contrary to the basic principle of tort compensation in our country,and it is too one-sided to take the income of the infringer as the estimation basis,so many factors should be considered comprehensively in order to achieve the purpose of reasonable compensation amount.