August 2025
Discussion on the Copyright Protection of Online Games (Mainland China)
Online games generally refer to sustainable multiplayer games that rely on the Internet as the transmission medium, utilize game operators’ servers and users’ computers as processing terminals, and employ client software as the interface for information interaction. These games operate under specific rules and are intended to provide entertainment, leisure, social interaction, and the pursuit of virtual achievements. In recent years, the high-profile copyright infringement case of Infinite Border v. Romance of the Three Kingdoms: Strategy Edition has sparked significant concern within the gaming industry. According to publicly available news reports, the court of first instance found that the latter had structurally copied 79 original gameplay rules from the former, and awarded RMB 50 million in damages, while also ordering the removal or modification of the infringing content. However, in August 2025, the appellate court reversed the judgment and remanded the case for retrial, reigniting debates over what has been termed the most closely-watched copyright dispute in China’s gaming sector. This case reveals the inherent difficulties in protecting online game copyrights: Does similarity in gameplay mechanics amount to infringement? How should in-game visual content be legally characterized? What are the legal boundaries for adaptation? With the promulgation of judicial instruments such as the Guidelines for the Trial of Civil Disputes Involving Intellectual Property Rights in Online Games (Provisional) (hereinafter referred to as the “Trial Guidelines”) by the Guangdong High People’s Court, the protection of online game copyrights in China is transitioning from fragmented, element-based safeguards to a more structured and systematic legal framework.
I. Copyright Protection of Game Visuals: Evolution from Element-Based to Holistic Protection
The visual presentation of online games is a complex composite formed by multiple elements, including code, artwork, music, and text. The legal framework for copyright protection of such visuals has undergone a significant evolution—from a segmented, element-based approach to a more integrated, holistic recognition of protectable expression. In early judicial practice, courts favored a fragmented protection approach, classifying artistic characters, background music, and narrative texts separately as works of art, musical works, and literary works, respectively. However, this approach failed to capture the organic and dynamic unity of in-game visual content, resulting in insufficient copyright protection.
A. Judicial Breakthrough toward Holistic Protection
A major turning point occurred with the issuance of the Trial Guidelines. Article 17 of the Trial Guidelines explicitly provides:
“Where a continuous sequence of dynamic images generated during the operation of an online game meets the criteria for works created in a manner similar to cinematographic works, such content shall be entitled to copyright protection.”
This principle was affirmed in the judgment of the Fantasy Westward Journey live-streaming case, in which the court expressly held that the continuous dynamic visuals of an online game, when taken as a whole, constitute a work created in a manner similar to cinematographic works and are thus protectable under copyright law.
B. Limited Recognition of Player Contributions
With respect to player-generated content, Article 20 of the Trial Guidelines draws a distinction between two scenarios:
1. In conventional games, where players merely invoke pre-designed elements within a defined rule set to generate visual content, such actions do not constitute creative acts and do not give rise to copyright.
2. However, where the game functions as a creation-based platform—i.e., providing players with tools for original expression beyond preset parameters—players may enjoy copyright in the expressions they independently create.
II. The Boundaries of the Right of Adaptation: From Expression Copying to Systematic Exploitation
The heart of online game adaptation disputes lies the distinction between “idea borrowing” and “expression transplantation.” Pursuant to Article 10 of the Copyright Law of the People’s Republic of China, the right of adaptation governs the creation of new, original works by altering the expression of an existing work. Through a series of judicial precedents, the boundaries of this right have been progressively clarified.
A. Criteria for Determining Infringement of the Right of Adaptation
In the Ghost Blows out the Light mobile game case, the court held that the unauthorized use of character names, geographic locations, and level designs that correspond to the plot of the original novel surpassed the level of borrowing abstract ideas and constituted an infringement of specific expressions.
The Shanghai Intellectual Property Court further elaborated that the textual descriptions appearing before game levels constituted direct quotations from the original literary work. Even where such excerpts were abridged or paraphrased, they lacked additional creative content. Regardless of the purpose or quantity of such quotations, the court found that they allowed players to read substantial parts of the original novel within the game. As a result, the use was not deemed “fair use” under the Copyright Law.
B. Expansion of the Scope of Control under the Right of Adaptation
Notably, the scope of the adaptation right extends beyond the initial act of adaptation to encompass the subsequent economic exploitation of the derivative work of the adapted work. In the Feihu v. Valley of Heroes case, the court explicitly stated:
“The right of adaptation, as a proprietary right of the copyright owner, not only governs the act of adaptation itself, but also regulates the subsequent property use of the adapted work. Without authorization, the alleged infringer’s subsequent exploitation of the adapted work—such as reproduction, distribution, and communication to the public via information networks—falls within the scope of the adaptation right and no longer constitutes independent rights.”
This ruling implies that any post-adaptation use of an unauthorized game—including operation, distribution, or online dissemination—constitutes continuing infringement, with each stage falling within the ambit of the adaptation right.
III. Protection of Game Rules: The Judicial Dilemma in Balancing Idea and Expression
The protection of game rules remains a “grey area” in the field of copyright law. Traditionally, rules have been regarded as belonging to the domain of ideas, which are not protectable under copyright. However, with the increasing sophistication and systematic design of modern games, a key legal question arises: can highly structured combinations of rules constitute expression eligible for copyright protection?
A. Judicial Innovation and Subsequent Callback
In the first-instance judgment of the Infinite Border case, the court made a groundbreaking determination by recognizing a combination of 79 gameplay rules as a protectable original expression. Furthermore, it classified the game as falling under Article 3(9) of the Copyright Law — “other intellectual achievements that bear the characteristics of a work.”
However, this progressive stance was later reversed on appeal. In August 2025, the Guangzhou Intellectual Property Court held that “game rules do not constitute subject matter eligible for copyright protection,” and remanded the case for retrial. This ruling marked a significant judicial retreat from prior doctrinal expansion.
B. A Rational Recalibration of “Other Intellectual Achievements”
The category of “other intellectual achievements,” newly introduced in the 2020 revision of China’s Copyright Law, serves as an open-ended provision. Its application must adhere to two strict principles:
1. The subject matter must first be examined to determine whether it can be classified under the existing statutory categories of works.
2. It must exhibit the essential attributes of a work, namely originality and expression.
As copyright is an absolute right, the recognition of new categories of protectable works must be approached with great caution. Game rules, by their nature, are functional methods or operational systems. If copyright protection were to be extended indiscriminately to such rules, it would risk overlapping with the domain of patent law and create significant ambiguity in defining the scope of exclusive rights.
IV. Judicial Innovation in Practice: From Case-by-Case Exploration to Normative Guidance
In response to the rapid evolution of the gaming industry, judicial authorities in China have actively sought to establish a regulatory framework suited to industry characteristics, through both case adjudication and the issuance of normative judicial documents.
A. Systematic Construction through the Trial Guidelines
The Trial Guidelines issued by the Guangdong High People's Court constitute a representative legal development, with their innovations manifested in three principal aspects:
1. Strengthened protection of original works, while striking a balance with the interests of derivative markets and users;
2. Clarification of adjudication standards on contentious issues such as livestreaming rights and punitive damages;
3. Pragmatic restraint in addressing emerging issues, allowing for market validation before judicial intervention, thereby avoiding overreach.
B. Flexible Allocation of the Burden of Proof
In the Feihu v. Valley of Heroes case, the court applied the rule of obstruction of evidence (evidence hindrance) in favor of the plaintiff, after the defendant refused to provide relevant operational data. The court consequently upheld the plaintiff’s claim for RMB 5 million in full. This approach addressed the evidentiary difficulties commonly faced by rights holders and demonstrated the judiciary’s strong commitment to reinforcing copyright protection.
C. Establishing Platform Liability
The Trial Guidelines introduced the “Red Flag” principle, under which network service providers may be held liable if they knew or should have known of infringing activity. This principle prevents platforms from evading liability by claiming ignorance.
It further compels platforms to implement proactive copyright compliance mechanisms. For example, livestreaming platforms must obtain proper licensing for the broadcast of popular games. Although such platforms contribute significantly to a game's exposure and popularity, the court emphasized that “contribution does not substitute for authorization.”
V. Industry Impact and Future Trends: Striking a Balance between Protection and Innovation
The evolution of judicial practice has had a direct and profound impact on the competitive landscape of the gaming industry. Looking ahead, copyright protection in the gaming sector is expected to follow three major trends:
A. Diversification of Legal Pathways for Rule Protection
As game mechanics become increasingly refined and complex, protection of gameplay rules may extend beyond copyright law to alternative legal frameworks, such as the Anti-Unfair Competition Law. For instance, in the Blizzard v. YouYi case, the court explicitly held that the defendant’s copying of the plaintiff’s gameplay rules and mechanics constituted an act of unfair competition. This signals a shift toward recognizing rule design as a form of competitive value worthy of legal protection under broader doctrines.
B. Innovation in Licensing Mechanisms
Derivative markets—particularly in areas such as game livestreaming—require the development of a tiered licensing system. Such a system should account for factors including platform scale and usage context, and adopt differentiated royalty structures accordingly. This approach would foster broader industry participation while ensuring fair compensation for original rights holders.
C. Technology-Driven Enforcement Solutions
Technological tools, especially blockchain, are increasingly being utilized to enhance rights enforcement. Blockchain’s immutable and time-stamped ledger can serve as a reliable method for real-time evidence preservation, addressing the longstanding challenge of tampering and admissibility of electronic evidence in infringement disputes.
I. Copyright Protection of Game Visuals: Evolution from Element-Based to Holistic Protection
The visual presentation of online games is a complex composite formed by multiple elements, including code, artwork, music, and text. The legal framework for copyright protection of such visuals has undergone a significant evolution—from a segmented, element-based approach to a more integrated, holistic recognition of protectable expression. In early judicial practice, courts favored a fragmented protection approach, classifying artistic characters, background music, and narrative texts separately as works of art, musical works, and literary works, respectively. However, this approach failed to capture the organic and dynamic unity of in-game visual content, resulting in insufficient copyright protection.
A. Judicial Breakthrough toward Holistic Protection
A major turning point occurred with the issuance of the Trial Guidelines. Article 17 of the Trial Guidelines explicitly provides:
“Where a continuous sequence of dynamic images generated during the operation of an online game meets the criteria for works created in a manner similar to cinematographic works, such content shall be entitled to copyright protection.”
This principle was affirmed in the judgment of the Fantasy Westward Journey live-streaming case, in which the court expressly held that the continuous dynamic visuals of an online game, when taken as a whole, constitute a work created in a manner similar to cinematographic works and are thus protectable under copyright law.
B. Limited Recognition of Player Contributions
With respect to player-generated content, Article 20 of the Trial Guidelines draws a distinction between two scenarios:
1. In conventional games, where players merely invoke pre-designed elements within a defined rule set to generate visual content, such actions do not constitute creative acts and do not give rise to copyright.
2. However, where the game functions as a creation-based platform—i.e., providing players with tools for original expression beyond preset parameters—players may enjoy copyright in the expressions they independently create.
II. The Boundaries of the Right of Adaptation: From Expression Copying to Systematic Exploitation
The heart of online game adaptation disputes lies the distinction between “idea borrowing” and “expression transplantation.” Pursuant to Article 10 of the Copyright Law of the People’s Republic of China, the right of adaptation governs the creation of new, original works by altering the expression of an existing work. Through a series of judicial precedents, the boundaries of this right have been progressively clarified.
A. Criteria for Determining Infringement of the Right of Adaptation
In the Ghost Blows out the Light mobile game case, the court held that the unauthorized use of character names, geographic locations, and level designs that correspond to the plot of the original novel surpassed the level of borrowing abstract ideas and constituted an infringement of specific expressions.
The Shanghai Intellectual Property Court further elaborated that the textual descriptions appearing before game levels constituted direct quotations from the original literary work. Even where such excerpts were abridged or paraphrased, they lacked additional creative content. Regardless of the purpose or quantity of such quotations, the court found that they allowed players to read substantial parts of the original novel within the game. As a result, the use was not deemed “fair use” under the Copyright Law.
B. Expansion of the Scope of Control under the Right of Adaptation
Notably, the scope of the adaptation right extends beyond the initial act of adaptation to encompass the subsequent economic exploitation of the derivative work of the adapted work. In the Feihu v. Valley of Heroes case, the court explicitly stated:
“The right of adaptation, as a proprietary right of the copyright owner, not only governs the act of adaptation itself, but also regulates the subsequent property use of the adapted work. Without authorization, the alleged infringer’s subsequent exploitation of the adapted work—such as reproduction, distribution, and communication to the public via information networks—falls within the scope of the adaptation right and no longer constitutes independent rights.”
This ruling implies that any post-adaptation use of an unauthorized game—including operation, distribution, or online dissemination—constitutes continuing infringement, with each stage falling within the ambit of the adaptation right.
III. Protection of Game Rules: The Judicial Dilemma in Balancing Idea and Expression
The protection of game rules remains a “grey area” in the field of copyright law. Traditionally, rules have been regarded as belonging to the domain of ideas, which are not protectable under copyright. However, with the increasing sophistication and systematic design of modern games, a key legal question arises: can highly structured combinations of rules constitute expression eligible for copyright protection?
A. Judicial Innovation and Subsequent Callback
In the first-instance judgment of the Infinite Border case, the court made a groundbreaking determination by recognizing a combination of 79 gameplay rules as a protectable original expression. Furthermore, it classified the game as falling under Article 3(9) of the Copyright Law — “other intellectual achievements that bear the characteristics of a work.”
However, this progressive stance was later reversed on appeal. In August 2025, the Guangzhou Intellectual Property Court held that “game rules do not constitute subject matter eligible for copyright protection,” and remanded the case for retrial. This ruling marked a significant judicial retreat from prior doctrinal expansion.
B. A Rational Recalibration of “Other Intellectual Achievements”
The category of “other intellectual achievements,” newly introduced in the 2020 revision of China’s Copyright Law, serves as an open-ended provision. Its application must adhere to two strict principles:
1. The subject matter must first be examined to determine whether it can be classified under the existing statutory categories of works.
2. It must exhibit the essential attributes of a work, namely originality and expression.
As copyright is an absolute right, the recognition of new categories of protectable works must be approached with great caution. Game rules, by their nature, are functional methods or operational systems. If copyright protection were to be extended indiscriminately to such rules, it would risk overlapping with the domain of patent law and create significant ambiguity in defining the scope of exclusive rights.
IV. Judicial Innovation in Practice: From Case-by-Case Exploration to Normative Guidance
In response to the rapid evolution of the gaming industry, judicial authorities in China have actively sought to establish a regulatory framework suited to industry characteristics, through both case adjudication and the issuance of normative judicial documents.
A. Systematic Construction through the Trial Guidelines
The Trial Guidelines issued by the Guangdong High People's Court constitute a representative legal development, with their innovations manifested in three principal aspects:
1. Strengthened protection of original works, while striking a balance with the interests of derivative markets and users;
2. Clarification of adjudication standards on contentious issues such as livestreaming rights and punitive damages;
3. Pragmatic restraint in addressing emerging issues, allowing for market validation before judicial intervention, thereby avoiding overreach.
B. Flexible Allocation of the Burden of Proof
In the Feihu v. Valley of Heroes case, the court applied the rule of obstruction of evidence (evidence hindrance) in favor of the plaintiff, after the defendant refused to provide relevant operational data. The court consequently upheld the plaintiff’s claim for RMB 5 million in full. This approach addressed the evidentiary difficulties commonly faced by rights holders and demonstrated the judiciary’s strong commitment to reinforcing copyright protection.
C. Establishing Platform Liability
The Trial Guidelines introduced the “Red Flag” principle, under which network service providers may be held liable if they knew or should have known of infringing activity. This principle prevents platforms from evading liability by claiming ignorance.
It further compels platforms to implement proactive copyright compliance mechanisms. For example, livestreaming platforms must obtain proper licensing for the broadcast of popular games. Although such platforms contribute significantly to a game's exposure and popularity, the court emphasized that “contribution does not substitute for authorization.”
V. Industry Impact and Future Trends: Striking a Balance between Protection and Innovation
The evolution of judicial practice has had a direct and profound impact on the competitive landscape of the gaming industry. Looking ahead, copyright protection in the gaming sector is expected to follow three major trends:
A. Diversification of Legal Pathways for Rule Protection
As game mechanics become increasingly refined and complex, protection of gameplay rules may extend beyond copyright law to alternative legal frameworks, such as the Anti-Unfair Competition Law. For instance, in the Blizzard v. YouYi case, the court explicitly held that the defendant’s copying of the plaintiff’s gameplay rules and mechanics constituted an act of unfair competition. This signals a shift toward recognizing rule design as a form of competitive value worthy of legal protection under broader doctrines.
B. Innovation in Licensing Mechanisms
Derivative markets—particularly in areas such as game livestreaming—require the development of a tiered licensing system. Such a system should account for factors including platform scale and usage context, and adopt differentiated royalty structures accordingly. This approach would foster broader industry participation while ensuring fair compensation for original rights holders.
C. Technology-Driven Enforcement Solutions
Technological tools, especially blockchain, are increasingly being utilized to enhance rights enforcement. Blockchain’s immutable and time-stamped ledger can serve as a reliable method for real-time evidence preservation, addressing the longstanding challenge of tampering and admissibility of electronic evidence in infringement disputes.
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