The New Theory On Objects Of Copyright Protection

With the development of society,people have continuously created a series of new intellectual labor results in the fields of literature,art and science.Copyright Law and Regulations for the Implementation of the Copyright Law only list eight specific types of works.Therefore,there are always divergences in the academic and practical circles as to whether the intellectual labor achievements that are difficult to interpret as existing works represented by the rules of the game can be protected by copyright law.The phenomenon of different judgments in the same case is prominent.On the other hand,as a key element of attracting players in online games,the game rule development cycle is long and the cost is high.However,due to the unclear legal regulations and inconsistent attitudes of trial practice,the risk of plagiarism of a game rule is deemed to be smaller than the risk of copying the game's source code,art,and music.That makes game rule became a disaster area of plagiarism.From the perspective of the rules of the game,this article is based on the subject matter of copyright protection,and discusses the nature of the ideology / expression dichotomy and functional principles in detail from a theoretical level,and the determination of the objects and scope of copyright protection under these two principles.Combined with trial practice,it is proposed that the rules of the game can be the theoretical basis for the object of copyright protection.The first part analyzes the copyright protection plight of new types of works under the existing laws.This article considers that the types of works in copyright law are only illustrative and not restrictive.For new types of works that cannot be interpreted as existing works,but meet the composition of the work and are not explicitly excluded by law,copyright protection should not be excluded.The second part sorts out and analyzes the different attitudes of current trialpractice to the protection of game rules.Most courts find that the rules of the game are not subject of copyright protection,but can be regulated by anti-unfair competition laws.A few courts indirectly protect the rules of the game by affirming the copyright of other types of works.This article considers that the former conflicts with the legislative purpose of copyright law,and the latter has limited protection effects and cannot truly regulate the plagiarism of game rules.The third part discusses the scope of protection and identification methods of copyright under the dichotomy of expressions.In particular,it analyzes the meaning of ‘idea' and ‘expression' in the sense of copyright and the relationship between the two in the works.This article believes that in the works,from the idea to the essence of expression is a multi-level process from abstraction to concrete.Copyright law not only protects specific expressions,but also protects the ‘expression content' between expressions and ideas under the expressions.The specific and recognizable specific rules in the game rules belong to the expression category.The fourth part discusses the filtering of copyright protection objects in detail by the functional principle.This article argues that a distinction should be made between‘factual functionality'and ‘legal functionality'.The functional expression in the work does not exclude that the artistic expression that can be separated from it is protected by copyright law.Based on this analysis,sort out the functional expressions in the game rules.The fifth part analyzes the ‘substantially similar' rules in the determination of copyright infringement for non-literal copying of game rules.This article considers that ‘substantial similarity' is based on the ‘originality' of the work,and judges whether the alleged infringing work uses the substantial part of the right work.As for the rules of the game,the three-step test method or the internal and external test methods should be used to judge whether the general audience's knowledge level and attention ability constitute a substantial similarity,and no confusion should be taken as the criterion.Due to the late start of China's judicial protection of game rules,in the process of demonstration,multiple typical cases outside the territory and domestic trial practice were introduced to verify each other.It is expected to promote the improvement of different judgments in the same case and the healthy and orderly development of the game industry.