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Oliver Brown

This article examines and critiques the American copyright regime's increasingly protective approach to video games and their subject matter. Over the past decade, a trio of district court decisions have bolstered protection for video games by relaxing standards for protectability and substantial similarity. Subsequent rulings, concerning both games and other forms of intellectual property, suggest this protective streak will continue. While heightened protection might provide a necessary deterrent to ‘cloning’ and other kinds of impermissible copying, it will also endanger valuable forms of appropriation. After decades of limited copyright involvement, mimesis has become an important element of game creation – widely tolerated by the gaming community as a source of inspiration, interoperability, and cultural conversation. A more expansive view of protectability may inhibit imitative behavior that has, in the past, benefited new creators and fans without harming the economic expectations of prior authors. Moreover, that new approach, which relies heavily on juries for unpredictable, case-by-case determinations, may restrict the financial and creative outlook of the video game industry at large.

In its first section, this article identifies the elements of video games that have been deemed protectable under copyright law. The second section summarizes foundational video game case law, in which courts established restrictive standards for protectability and substantial similarity. The third then discusses the paradigm shift towards more expansive protectability, recounting cases where courts found games worthy of heightened protection. In its fourth section, this article argues that the protective trend has yet to peak, looking to evidence gleaned from recent copyright suits. A concluding section outlines the risks of overprotection, cautioning against a potentially unreasoned and impractical copyright standard.

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Ming Chen and Xiaohai Liu

Bad faith trademark filings are a serious problem in China. During the fourth revision of the Chinese Trademark Law in 2019, bad faith filings without the intention to use the trademark was added as an absolute ground, with the aim that the Chinese Trademark Law can cope with the bad faith filings problem more effectively. Nevertheless, compared with the EU trademark system, the bad faith filing in the Chinese Trademark Law is not an absolute autonomous ground. Different kinds of bad faith filings are regulated by different clauses respectively. Some trademarks filed in bad faith can only be dealt with by relative grounds and cannot be invalidated after five years of their registrations. In order to deter malicious registration, bad faith filings per se should be introduced into the Chinese Trademark Law as an autonomous absolute ground. Trademarks filed in bad faith should be invalidated at any time.

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Irina Shurmina

Advertising on the Internet showed fascinating results in Russia in 2019 – according to the statistics of the Association of Communication Agencies of Russia (ACAR), the Internet was the only growing platform of advertising distribution, while such channels as TV, radio and printed media shortened their advertising profits. Along with growth of the online advertising market the interest and attention to legal aspects of digital advertising is increasing. Cases on digital advertising are always creative just like advertising itself is. The main challenges relate to the application of regular requirements of the advertising law, which are already well understood in the TV or radio business, to the Internet. While doing this, we in Russia also take into account international experience and trends in the field of digital advertising and try to predict further development of legal landscape and practice.

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Ke Yu and Colin Darch

We build on the well-established critique, primarily in the US literature, of the following assumptions: (1) copyright protections serve to incentivise creativity; (2) copyright is designed with such incentivisation as its primary purpose; and (3) a standardized set of copyright protections should ideally be applicable to all forms of cultural production, across all situations in all countries. These assumptions lead to two fundamental conceptual flaws in much current copyright policy discourse: (1) it conflates concepts such as incentive, reward, and recognition; (2) it is nomothetic in character insofar as the existing structural and procedural diversity of the different cultural industries that it governs is inadequately acknowledged. Our critique in this article is not, therefore, a general one, but is limited to a specific theory of copyright, which pretends that copyright is an incentive to creativity while the evidence indicates that it is not. We highlight the importance of taking account of the whole ‘creativity value chain’ in the different industries with their various components – the creator, the copyright holder, the distributor, and the market. Drawing on case studies of three creative industries: literary writing, film, and fashion, we demonstrate that not only is there currently considerable heterogeneity among these industries, but that there has also been heterogeneity within each industry at different periods and in different contexts. We argue that this flexibility is a beneficial characteristic of the current functioning of copyright that should be defended against pressures in favour of harmonization.

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Zhe Wang, Yifan Lin and Yajing Zhou

How to judge the formation of Malicious Incompatibility is a problem that cannot be circumvented and is difficult to solve in the trial of new types of unfair competition on the Internet. Although the revised Anti-Unfair Competition Law explicitly stipulates Malicious Incompatibility as unfair competition, it fails to provide a clear set of judgment criteria. Germany and the United States have respectively developed complete laws and regulations and created judgment rules to deal with new unfair competition disputes arising in the development of the Internet, providing China with a lot of referential trial ideas. By collecting and analyzing the judgment documents and trial ideas of previous cases, this paper, focusing on the internal logic of malice and incompatibility in the law, tries to judge whether the behavior constitutes Malicious Incompatibility considered from the perspective of subjective purposes and the objective effects caused by the behavior and with the method of value measurement.

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Hanna Callens

Children spend a tremendous number of hours online these days watching kids their age play video games on YouTube. The videos of these young stars, also called ‘kidfluencers’, have become an essential avenue for marketers to advertise games and merchandise. However, the game promotions of these kidfluencers can easily deceive children, as the paid collaboration with companies is not always properly disclosed. Therefore, this article aims to investigate if the European advertising regulations sufficiently protect children against misleading promotions in the videos of kidfluencers. It starts by analysing the effectiveness of kidfluencer marketing and its applicable European advertising legislation. After this analysis, it shows that the current regulations of kidfluencer marketing require a European approach that harmonizes the use of advertising disclosures and YouTube's responsibility regarding commercial communication.

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Rosie Burbidge

Copyright protection is often unavailable for many game elements due to the dynamic nature of games where single still frames are automatically generated and consequently proving originality and copying can be challenging. Registered designs help fill this gap and are a powerful, but underused, weapon. This article explain how designs can be used by gaming companies and the issues that need to be considered before starting a filing programme and the impact of Brexit on everything – to the extent that this can be known in mid-2020.

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Johanna Gibson