The practice of "borrowing" certain aspects of existing works and repurposing them in order to create new works is one which is familiar to all fields of creative endeavour, including the relatively youthful medium of videogames.¹ The role of copyright law in these cases is, as always, to differentiate between legitimate inspiration and impermissible infringement in a way which allows subsequent creators to draw upon ideas and themes from earlier works, while safeguarding the interests of earlier authors.
"借用"现有作品的某些方面并重新利用以创作新作品的做法，在包括相对年轻的电子游戏媒介在内的所有创意领域都很常见。 ¹ 在这些情况下，版权法的作用一如既往，是以一种允许后续创作者借鉴早期作品的思想和主题，同时保护早期作者利益的方式，区分合法的灵感与不可接受的侵权。

Within the videogame industry, a recent debate as to where the line between inspiration and infringement ought to be drawn has emerged, sparked by a string of high-profile controversies in which certain developers have been criticised for attempting to capitalise on the success of their competitors’ most popular videogames by copying the way in which these videogames play. In early 2011, Capcom Mobile’s MaXplosion was criticised by Twisted Pixel Games for its "nauseating" degree of similarity to the latter’s own earlier videogame ’Splosion Man; both of these titles require their protagonists to escape from mad scientists by propelling themselves through self-induced explosions.² Shortly after that, another company, Gamenauts, also attracted controversy when it released the fishing-themed videogame Ninja Fishing, which bears close similarities to Vlambeer Games’s Radical Fishing; in both of these games, the player is given the objective of catching as many fish as possible by casting a line into a virtual ocean, waiting for the fish to bite, and then—in an innovative twist on traditional fishing-themed videogames—instead of reeling them in, flinging them out of the water and killing as many as possible using a gun (Radical Fishing) or a sword (Ninja Fishing).³ Even more recently, Zynga, the social games developer best known for Facebook-based titles such as FarmVille, was taken to task by Nimblebit following the launch of its tower-building game Dream Heights, which was said to have copied many elements from Nimblebit’s own Tiny Tower. *E.I.P.R. 866 ⁴
在电子游戏行业，近期围绕灵感与侵权界限的讨论愈发热烈，起因是一系列备受争议的事件：某些开发商被指责通过模仿竞争对手热门游戏的玩法，试图从其成功中获利。2011 年初，卡普空移动（Capcom Mobile）的《MaXplosion》因与 Twisted Pixel Games 早前作品《'Splosion Man》的相似度"令人作呕"而遭批评；两款游戏均要求主角通过自爆推进的方式逃离疯狂科学家的追捕。 ² 此后不久，另一家公司 Gamenauts 因发布钓鱼主题游戏《Ninja Fishing》卷入争议，该游戏与 Vlambeer Games 的《Radical Fishing》高度相似：两者都要求玩家将钓线抛入虚拟海洋，等待鱼咬钩后——与传统钓鱼游戏不同——不是收线而是用枪（《Radical Fishing》）或剑（《Ninja Fishing》）将鱼甩出水面并尽可能多地击杀。 ³ 最近，以《FarmVille》等 Facebook 游戏闻名的社交游戏开发商 Zynga 推出建造类游戏《Dream Heights》后，被 Nimblebit 指控抄袭其《Tiny Tower》的诸多元素。*E.I.P.R. 866 ⁴

The increase in the number of such cases has been attributed to the popularity of platforms such as the Apple iOS, Android and Facebook, where smaller, less complex videogames can find an audience, as well as the rise of digital distribution channels such as the App Store; all of these have led to lower costs and shorter development-to-distribution periods which allow videogame developers to be more responsive to popular trends.⁵ The striking feature of these cases is that the developers whose actions have attracted controversy are not accused of copying the underlying computer code of their competitors’ videogames or the precise graphics and sounds used in them; indeed, a comparison of the audiovisual displays generated by the videogames concerned confirms that there are sufficient differences between the graphics and sounds used by these developers and those of their competitors so as to render unsustainable any claim for infringement on that basis. Rather, the nature of copying which these developers are charged with is more subtle: they seek to replicate what is known in the parlance of the videogame community as the gameplay of their competitors’ most popular titles, using different computer programs and, crucially, sufficiently different graphics and sounds. Gameplay is, in short, the combination of game mechanics,⁶ rules, goals, obstacles, rewards and penalties used in a particular videogame, which is made manifest through the audiovisual displays generated when the player interacts with the game.⁷
此类案件数量的增加归因于苹果 iOS、安卓和 Facebook 等平台的普及，这些平台为小型、复杂度较低的视频游戏提供了受众基础，以及 App Store 等数字分发渠道的崛起；所有这些因素共同降低了成本并缩短了从开发到分发的周期，使视频游戏开发者能更快速地响应流行趋势。 ⁵ 这些案件的显著特点是，引发争议的开发者并未被指控复制竞争对手视频游戏的基础计算机代码或精确使用的图形与声音；实际上，对比相关游戏生成的视听呈现可确认，这些开发者采用的图形和声音与竞争对手存在足够差异，使得基于此的侵权主张难以成立。相反，这些开发者被指控的复制行为更为微妙：他们试图复现游戏社区术语中所谓的“玩法”——即竞争对手最热门作品的核心体验，但使用不同的计算机程序，且关键是通过明显差异化的图形和声音实现。简言之，玩法是特定视频游戏中机制、 ⁶ 规则、目标、障碍、奖励与惩罚的组合，通过玩家与游戏互动时产生的视听呈现得以具象化。 ⁷

This practice, which has come to be known in the videogame industry under the label cloning, is far less blatant than the kind of copying which was prevalent in the early days of the videogame industry, when developers routinely churned out wholesale "knock-offs" aimed at replicating every single aspect of their competitors’ best-selling videogames. In these early cases, the similarities in the graphics and sounds used would normally be so great as to justify a finding of infringement on that basis.⁸ The position in relation to the copying of gameplay alone, however, is less clear-cut. Currently, developers in the position of Twisted Pixel, Vlambeer Games and Nimblebit are seen as having very little in the way of possible recourse under copyright law. Almost all of the commentators on the recent controversies, including legal practitioners, share the view that gameplay elements constitute general ideas which fall outside the scope of copyright protection.⁹ This appears to be borne out, at least at first glance, by the decision in Nova Productions Ltd v Mazooma Games Ltd,¹⁰ the most significant judicial pronouncement to date on the copyright status of videogames under the law of the United Kingdom. In Nova Productions, it was held that the graphics belonging to a videogame, as well as the underlying computer program which implements it, are protected by copyright, being respectively artistic works and a literary work within the meaning of the UK Copyright, Designs and Patents Act 1988 (the CDPA). Although the question of copyright in the sounds and music used in videogames was not raised in this particular case, it seems reasonable to assume that they, too, are protected either as sound recordings or musical works or both. At the same time, however, certain game features which the defendants were said to have copied were held to be unprotectable ideas rather than protectable expression.
这种做法在电子游戏行业中被称为“克隆”，远不如电子游戏业早期盛行的复制行为那样明目张胆——当时开发者们常常大批量炮制“山寨品”，旨在复制竞争对手畅销游戏的每一个细节。在这些早期案例中，所使用的图形和声音相似度通常极高，足以据此认定侵权成立。 ⁸ 然而，仅针对游戏玩法复制的法律立场则不那么明确。目前，像 Twisted Pixel、Vlambeer Games 和 Nimblebit 这样的开发商，在版权法下几乎没有什么可行的追索途径。几乎所有评论近期争议的人士（包括法律从业者）都认为，游戏玩法元素属于不受版权保护的通用概念。 ⁹ 这一观点至少在表面上得到了 Nova Productions Ltd 诉 Mazooma Games Ltd 案判决的支持， ¹⁰ 该案是英国法律下关于电子游戏版权地位迄今最重要的司法声明。在 Nova Productions 案中，法院认定电子游戏中的图形及其底层实现程序受版权保护，分别属于 1988 年《英国版权、设计与专利法案》（CDPA）所定义的“艺术作品”和“文字作品”。尽管该案未涉及电子游戏中音效和音乐的版权问题，但合理推测它们也应作为录音制品或音乐作品（或两者兼具）受到保护。但与此同时，被告被指控复制的某些游戏特征被判定为不受保护的思想，而非受保护的表达。

It is therefore possible to see how Nova Productions can be interpreted, at least on an initial reading, as establishing the position that the copying of a videogame’s gameplay elements alone does not amount to infringement, provided that no copying of its graphics, sounds or underlying computer code has occurred. The aim of this article is to address the desirability of such a perceived legal outcome against the background of the controversies described above, taking into consideration factors such as the importance of gameplay, the amount of labour which is expended in its design and implementation, as well as concerns that the lack of express copyright protection may ultimately lead to under-investment on the part of videogame developers in creating innovative and satisfying gameplay experiences. These factors also have to be viewed in light of the importance of the videogame industry to the economy of the United Kingdom: it is estimated to contribute around £1 billion to the national GDP annually,¹¹ and is the largest in Europe and the third largest globally in terms of developer success and sales of software.¹²
因此，可以理解为何在初步解读时，Nova Productions 案被认为确立了以下立场：仅复制电子游戏的玩法元素不构成侵权，前提是未复制其图形、声音或底层计算机代码。本文旨在结合上述争议背景，探讨这一法律结果的可取性，同时考量玩法的重要性、其设计与实施所投入的劳动量，以及缺乏明确版权保护可能导致游戏开发商在创造创新且令人满意的玩法体验上投资不足的担忧。此外，还需结合电子游戏产业对英国经济的重要性来审视这些因素：据估计，该产业每年为英国国内生产总值贡献约 10 亿英镑， ¹¹ 并且在开发商成功和软件销售方面，英国是欧洲最大、全球第三大的市场。 ¹²

The first part of this article sets out the arguments for and against the protection of gameplay in videogames, and demonstrates that a case in favour of copyright *E.I.P.R. 867 protection for gameplay can be made out. The second part highlights various facets of Nova Productions that are salient to the present discussion, while the third and fourth parts offer an alternative reading of that decision, arguing that it does not preclude the possibility of such protection, provided that the relevant gameplay aspects are framed in sufficient detail and are classified as the appropriate category of subject-matter. In this context, reference will be made to previous debates on the question of copyright protection for television formats and multimedia products respectively. As with gameplay, conceptual difficulties have been encountered in classifying both television formats and multimedia products into the categories of copyright subject-matter set out in the CDPA; moreover, as with gameplay, the elements which make up a television format have often been said to amount to general, unprotectable ideas.
本文第一部分阐述了支持与反对电子游戏玩法保护的论点，并论证了为游戏玩法提供版权《欧洲知识产权评论》867 保护的合理性。第二部分着重分析了 Nova Productions 案中与当前讨论相关的多个关键点，而第三和第四部分则对该判决提出了另一种解读，主张只要相关游戏玩法要素能以足够详尽的框架呈现并被归类为适当的版权客体类别，该判决并不排除此类保护的可能性。在此背景下，将分别回顾先前关于电视节目模式与多媒体产品版权保护问题的辩论。如同游戏玩法一样，将电视节目模式与多媒体产品归入《版权、设计与专利法》规定的版权客体类别时也遭遇了概念上的困难；此外，与游戏玩法类似，构成电视节目模式的元素常被认为属于不受保护的通用创意范畴。

Two primary objections can be discerned from the criticism directed by the videogame community towards developers who are seen as having unfairly copied the gameplay of their competitors’ videogames. Both of these reflect, to a certain extent, the justifications which have traditionally been invoked to support the grant of copyright protection for intellectual products. The first relates to the hard work which the original developers have put into designing, implementing and testing the gameplay aspect of their videogames; they are seen as having been deprived of the fruits of their labour by the actions of the copyists, who are in turn perceived as "free riders" taking unfair advantage of the original developers’ efforts. Commenting on the Ninja Fishing controversy, Rami Ismail, the co-founder of Vlambeer Games, describes the heartache of having been deprived of "something [we] worked so hard on to create, something [we] put so many hours and thoughts and so much research into, something [we] tweaked for weeks", and adds that the practice of cloning "saves cloners a lot of time and money spent on that prototyping phase".¹³
从电子游戏社区对开发者的批评中可以辨识出两种主要反对意见，这些开发者被认为不公平地抄袭了竞争对手游戏的玩法。这两种反对意见在某种程度上反映了传统上为支持对智力产品授予版权保护而提出的理由。第一种反对意见关乎原创开发者在设计、实现和测试游戏玩法方面所付出的辛勤劳动；他们被视为因抄袭者的行为而被剥夺了劳动成果，而抄袭者则被视为“搭便车者”，不公平地利用了原创开发者的努力。Vlambeer Games 联合创始人拉米·伊斯梅尔在评论《忍者钓鱼》争议时，描述了被剥夺“我们倾注无数小时、思考与大量研究才创造出的成果，那些我们花费数周调整的心血”所带来的痛苦，并补充道克隆行为“为克隆者节省了原型阶段的大量时间和金钱”。 ¹³

This objection corresponds to two of the major justifications for copyright. The first is the version of the natural rights justification which is drawn from Lockean labour theory. This posits that all individuals have property rights in their own persons, and hence in their own labour and the products of such labour; copyright is thus understood as the realisation, under positive law, of this property right.¹⁴ The second corresponding justification is the argument from desert, which states that copyright protection is given to creators because they deserve to benefit from the efforts which they have expended; as a corollary, it would be unfair if unauthorised third parties were able to reap the benefits of those same efforts.¹⁵ This variant of the argument from desert has often been deployed in UK copyright law: for instance, Lord Bingham in Designers Guild Ltd v Russell Williams (Textiles) Ltd described as a "clear principle" of copyright law that:
这一反对意见对应着版权两大主要正当性理由。其一源自洛克劳动理论的自然权利说变体，主张人人对其人身及劳动成果享有财产权，版权则被视为这一财产权在实证法中的实现。 ¹⁴ 其二为应得论，即创作者因其付出努力而理应获得版权保护以享有相应利益；反之，若未经授权的第三方得以攫取同等努力的成果则有失公平。 ¹⁵ 英国版权法常援引此应得论变体，如宾厄姆勋爵在 Designers Guild Ltd 诉 Russell Williams (Textiles) Ltd 案中将版权法"明确原则"表述为：

"[A]anyone who by his or her own skill and labour creates an original work … shall … for a limited period, enjoy an exclusive right to copy that work. No one else may for a season reap what the copyright owner has sown." ¹⁶
"[任何人凭借自身技艺与劳动创作原创作品……应……在特定期限内享有复制该作品的专有权。他人不得在期间收割版权所有者播种的成果。" ¹⁶

The second primary objection stems from the broader concern that the lack of recourse for developers whose videogames have been cloned by opportunistic competitors will be detrimental to the long-term creative health of the industry. Under these circumstances, it is said, developers that focus on producing innovative gameplay experiences will ultimately be forced to close down, as they will be constantly undercut by competitors whose business model revolves around the cloning of existing videogames, rather than the development and prototyping of new gameplay designs. This concern is identical to the one addressed by the incentive-based justification for copyright, which regards copyright protection as a means of incentivising the production of a socially optimal number of intellectual products. Without copyright, runs the argument, there would be little inducement for individuals or firms to invest time, effort and money in the creation of new works; instead, it would be in their self-interest to allow others to develop new works, and then to produce imitations of these new works, thus saving themselves the costs of initial creation.¹⁷
第二个主要反对意见源于一种更广泛的担忧，即对于那些视频游戏被投机取巧的竞争对手克隆的开发者来说，缺乏追索权将不利于行业的长期创造性健康发展。在这种情况下，据说专注于创造创新游戏体验的开发者最终将被迫关闭，因为他们将不断被那些商业模式围绕克隆现有视频游戏而非开发和原型设计新游戏玩法的竞争对手削弱。这一担忧与版权激励理论所解决的问题相同，该理论将版权保护视为激励生产社会最优数量知识产权产品的手段。该论点认为，如果没有版权，个人或公司将几乎没有动力投入时间、精力和金钱来创作新作品；相反，让他们人开发新作品，然后生产这些新作品的模仿品，从而节省初始创作成本，将符合他们的自身利益。 ¹⁷

In the context of the videogame industry, these concerns are not unfounded. Indeed, there is evidence to suggest that many major developers may be prioritising other aspects of videogames—such as graphics and sounds—at the expense of innovative gameplay. This is underscored by the push for increasingly photo-realistic and detailed gaming environments, particularly in first-person shooters, and the emerging trend of major developers contracting with well-known film and television actors to provide voice-acting for their *E.I.P.R. 868 videogames.¹⁸ A related phenomenon is the tendency of major developers to stick to the tried and true by opting, more often than not, to create sequel after sequel for a successful videogame series rather than investing in a completely new project¹⁹; as a case in point, all but 2 of the 10 best-selling videogames in the United Kingdom for 2011 were sequels or continuations of some sort.²⁰ An exacerbating factor is that the victims of the recent gameplay cloning controversies have tended to be small companies whose limited resources mean that they can work on only one, or at most two, videogames at a time, unlike larger, better-funded and better-staffed developers that are capable of carrying on a number of projects simultaneously. For these small companies, the loss of sales from even a single videogame to cheaper clones produced by competitors represents the loss of a major revenue stream.
在电子游戏产业中，这些担忧并非毫无根据。事实上，有证据表明，许多大型开发商可能正以牺牲创新玩法为代价，优先考虑电子游戏的其他方面——如画面和音效。这一点从对日益逼真和细致游戏环境的追求（尤其是第一人称射击游戏中）以及大型开发商与知名影视演员签约为其*E.I.P.R. 868 电子游戏提供配音的新兴趋势中可见一斑。 ¹⁸ 相关现象是，大型开发商倾向于固守成熟模式，往往选择为一款成功的电子游戏系列不断推出续作，而非投资全新项目 ¹⁹ ；例如，2011 年英国销量前十的电子游戏中，除两款外均为某种形式的续作或延续作品。 ²⁰ 加剧这一问题的因素是，近期游戏玩法克隆争议的受害者多为小型公司，其有限资源意味着他们一次只能开发一至两款游戏，而资金更雄厚、人员更充足的大型开发商却能同时推进多个项目。对这些小公司而言，哪怕仅有一款游戏的销量被竞争对手的廉价克隆品夺走，也意味着主要收入来源的丧失。

Many of the commentators who have advanced these objections, however, also appear to be wary of advocating overly strong legal protection for gameplay in videogames, seeing it as a course of action that could potentially result in overly restrictive limitations on the ability of subsequent developers to make use of gameplay elements which have been featured in earlier videogames. Although this is a very real worry, it does not, by itself, nullify the case for protecting gameplay through copyright; instead, it merely emphasises the need for a careful balancing of the interests of existing videogame developers against those of subsequent developers and the public at large—a task with which judges accustomed to dealing with copyright cases will be familiar.
然而，许多提出这些反对意见的评论者也似乎对过度强化电子游戏中游戏玩法的法律保护持谨慎态度，认为此举可能导致对后续开发者利用早期电子游戏中已出现的游戏玩法元素的能力施加过于严格的限制。尽管这一担忧非常现实，但它本身并不能否定通过版权保护游戏玩法的合理性；相反，它只是强调了需要谨慎平衡现有电子游戏开发者与后续开发者及广大公众之间的利益——这是习惯于处理版权案件的法官所熟悉的任务。

On balance, the case for the protection of gameplay in videogames thus appears capable of being supported by the traditional justifications for copyright. Any step taken towards the realisation of such protection, however, must first be considered in the light of its compatibility with the position taken in Nova Productions. It is to this key decision, and the extent to which it truly represents a limitation on the possibility of copyright protection for gameplay, that the discussion will now turn.
综上所述，保护电子游戏中游戏玩法的理由似乎能够获得传统版权正当性的支持。然而，在采取任何实现此类保护的步骤之前，必须首先考虑其与《Nova Productions》案所持立场的一致性。讨论现在将转向这一关键判决，以及它在多大程度上真正代表了游戏玩法获得版权保护可能性上的限制。

The detailed facts and judgments of Nova Productions have been summarised elsewhere, and need not be reiterated here.²¹ In brief, this case involved two actions brought by Nova, a company engaged in the business of designing, manufacturing and selling videogames, against the manufacturers, suppliers and operators of two videogames, Jackpot Pool and Trick Shot, which it contended had infringed the copyright in one of its own games, Pocket Money. All of these videogames were based on the theme of pool. Nova’s main complaint was that the defendants had copied a number of game features from Pocket Money, including the way in which it enabled the player to alter the power of a shot by timing it relative to a pulsing power level, and the indication of the power level through an animation cycle which showed the movement of the cue away from and towards the ball. It was held by Kitchin J. at first instance that there had been no infringement by any of the defendants, and this decision was upheld on appeal.
Nova Productions 一案的详细事实与判决已在其他场合予以概述，此处无需赘述。 ²¹ 简言之，本案涉及 Nova 公司（一家从事电子游戏设计、制造及销售业务的企业）针对两款游戏《Jackpot Pool》和《Trick Shot》的制造商、供应商及运营商提起的两项诉讼。Nova 主张这两款游戏侵犯了其自有游戏《Pocket Money》的版权。这些电子游戏均以台球为主题。Nova 的主要指控是被告方从《Pocket Money》中复制了多项游戏特性，包括通过相对于脉动能量条计时来调整击球力度的玩法，以及通过展示球杆远离又接近母球的动画循环来显示能量条的设计。初审阶段 Kitchin 法官裁定所有被告均未构成侵权，该判决在上诉中亦获维持。

For the purposes of the present discussion, the decision in Nova Productions can be read as resting on two related grounds: first, that the game features were framed at such a high level of abstraction or generality as to amount to unprotectable ideas rather than protectable expression; and secondly, the difficulty of fitting them into one of the existing categories of copyright subject-matter under the CDPA, in such a way that the copying of these features would amount to the taking of the whole or a substantial part of that copyright work. This leaves open the possibility that gameplay may still be accommodated within the existing copyright framework if these two objections were to be overcome. In this context, it should be noted that the judgments, both at first instance and on appeal, contain no categorical statement that game features are never capable of being protected by copyright. Indeed, Kitchin J.’s reference to the difficulty of "appreciat[ing] the extent of the similarities and differences between the games in issue without having an opportunity to see them in use or, better still, play them",²² indicates a certain degree of recognition that "how a videogame plays" is of some value in an infringement analysis.
就当前讨论而言，Nova Productions 案判决可解读为基于两个相互关联的理由：其一，游戏元素因其抽象或概括程度过高，仅构成不受保护的思想而非可受保护的表达；其二，这些元素难以归入《版权、设计与专利法案》（CDPA）现有版权客体类别，使得复制这些元素难以构成对版权作品整体或实质部分的挪用。这为游戏玩法在克服上述两项异议后仍可能被纳入现有版权框架留下了空间。需特别指出的是，无论是初审还是上诉判决，均未明确断言游戏元素绝对无法获得版权保护。事实上，Kitchin 法官关于"若不实际观察或亲身体验争议游戏的运行，则难以评估其相似性与差异性程度"的论述 ²² ，某种程度上承认了"电子游戏如何游玩"在侵权分析中具有一定价值。

As described above, one of the primary objections to the protection of gameplay through copyright arises from concerns that such an approach would be tantamount to extending copyright protection to ideas, thus preventing subsequent creators from making use of those ideas. This was voiced in Nova Productions itself, when Jacob L.J., delivering the judgment on appeal, cautioned that the conferment of protection on ideas as general as those relied upon in that case would cause copyright to "become an instrument of oppression rather than the incentive for creation which it is intended to be". *E.I.P.R. 869 ²³
如前所述，反对通过版权保护游戏玩法的主要理由之一，是担忧此举等同于将版权保护延伸至思想范畴，从而阻碍后续创作者利用这些思想。Nova Productions 案上诉判决中，Jacob 大法官明确警示：若对本案所涉那般宽泛的思想给予保护，将使版权"沦为压制工具而非其本意所追求的创作激励"*《欧洲知识产权评论》869 页 ²³ 。

The very same argument, together with its counter-arguments, has been canvassed extensively in earlier debates on the issue of copyright protection for television formats, which first arose more than two decades ago in the wake of the Privy Council decision in Green v Broadcasting Corp of New Zealand (Green).²⁴ In this case, protection was denied to the format of the talent show Opportunity Knocks on the ground, inter alia, that the distinctive, repeated features in a television series—including, in this case, the use of various catchphrases, a device called a "clapometer" for measuring audience reaction to competitors’ performances, and the introduction of competitors by sponsors—could not be isolated from the changing material presented in each separate episode and identified as an original dramatic work; and further, that the features in issue were "conspicuously lacking" in the certainty needed "in order to avoid injustice to the rest of the world" should copyright be granted.
同样的论点及其反驳意见，在早前关于电视节目模式版权保护的辩论中已被广泛讨论，这一议题最初源于二十多年前枢密院对格林诉新西兰广播公司案（Green 案）的裁决。 ²⁴ 在此案中，法院拒绝为选秀节目《机会敲门》的模式提供保护，理由之一是该电视系列节目中独特且重复出现的元素——包括使用各种口号、一种名为“掌声测量器”的装置来测量观众对选手表演的反应，以及由赞助商介绍选手等——无法从每集不断变化的节目内容中分离出来，并被认定为原创戏剧作品；此外，争议中的元素在“为避免对他人造成不公”所需的确定性方面“明显不足”，若授予版权将难以保障。

The position taken by the Privy Council in Green met with the approval of commentators opposed to the protection of television formats by copyright. A comment by Miskin and Martino, which frames the case against the protection of television formats at its very broadest, warns that such protection would place "the right to use a black chair in the centre of a stage" under the sole control of the BBC, the producers of the quiz show Mastermind.²⁵ The same cautionary note was sounded in a consultative document on format protection issued by the then Department of Trade and Industry, which states that "any definition of a format would be likely to encompass very simple programming ideas with the result that basic ideas would effectively be monopolised for several generations".²⁶ Proponents of format rights, however, have criticised such sweeping warnings as being unfounded and, at worst, disingenuous, pointing out that the television formats for which protection is sought will generally be sufficiently elaborated so as to amount to developed expression rather than mere idea.²⁷ One such commentator, in a pointed riposte to the views expressed by Miskin and Martino, states that their proposition:
枢密院在格林案中所持立场获得了反对电视节目模式受版权保护的评论家们的赞同。米斯金与马蒂诺的评论将反对保护电视节目模式的论点推至最宽泛的层面，警告称此类保护将使“在舞台中央使用黑色椅子的权利”完全由 BBC——智力竞赛节目《智者为王》的制作方——掌控。 ²⁵ 同样的警示也出现在当时英国贸易工业部发布的一份关于节目模式保护的咨询文件中，该文件指出“任何对节目模式的定义都可能涵盖极其简单的节目创意，导致基础创意实际上被垄断数代之久”。 ²⁶ 然而，节目模式权利的支持者批评这类笼统警告缺乏依据，甚至可能带有误导性，并指出寻求保护的电视节目模式通常经过充分细化，已构成具体表达而非单纯创意。 ²⁷ 一位评论者在尖锐反驳米斯金与马蒂诺的观点时表示，他们的主张：

"[I]s over-simplistic and misleading, and therein lies the source of the misunderstanding between the two camps. What should, it seems, be the BBC’s property … is the title, the stage setting with black chair and lighting effects, the two-minute round question format of specialised and general knowledge, the important catchphrase ‘I’ve started, so I’ll finish’, and so on, until the whole format is identified." ²⁸
“[过于简化且具有误导性，这正是两派误解的根源。BBC 应当拥有的财产权……应包括节目名称、配有黑色椅子与灯光效果的舞台布景、两轮专业与常识问答的环节设计、关键台词‘我已开始，必将完成’等元素，直至整个节目模式被完整界定。” ²⁸

Indeed, in jurisdictions where television formats are capable of being protected by copyright, it is a prerequisite for such protection that the format concerned be sufficiently developed and executed. In Endemol v TV-SBT, for instance, the Brazilian court held that the format of reality show Big Brother was protectable as it was sufficiently detailed, observing that the format was not confined to the central concept of spying on people locked up in a house, but extended far beyond that to encompass details such as the arrangement of the participants’ rooms, the placement of cameras, the use of microphones, the kind of music used, the nature and extent of the participants’ contact with the outside world, their activities and so forth.²⁹
确实，在那些电视节目模式能够受到版权保护的司法管辖区，相关模式需得到充分开发和执行是获得此类保护的前提条件。例如，在 Endemol 诉 TV-SBT 案中，巴西法院裁定真人秀节目《老大哥》的模式因其详尽程度而应受保护，指出该模式不仅限于监视被关在房子里的人这一核心概念，还远超出此范围，涵盖了诸如参与者房间的布置、摄像机的摆放、麦克风的使用、所用音乐的类型、参与者与外界接触的性质和程度及其活动等诸多细节。 ²⁹

Requiring that the gameplay of a videogame be developed and elaborated at the same level of detail in order to be eligible for copyright protection should adequately address the objection that such protection would be tantamount to conferring a monopoly over ideas. This was a task which the claimant in Nova Productions was unable to accomplish, not because gameplay elements are inherently incapable of being elaborated in this manner, but simply because the defendants had not, on the facts, copied the elements in issue at such a great level of detail. Had the game features in issue been framed at a greater level of specificity, it remains possible that they would have been considered sufficiently developed so as to be taken out of the realm of mere ideas and into that of detailed expression. As Jacob L.J. himself said in an earlier decision:
要求电子游戏的玩法在同样详尽的层面上得到开发和阐述，以符合版权保护的资格，应能充分回应此类保护等同于授予对思想的垄断权的反对意见。这是 Nova Productions 案中原告未能完成的任务，并非因为游戏玩法元素本质上无法以这种方式详述，而仅仅是因为被告实际上并未在如此详尽的层面上复制争议元素。若争议游戏特征以更高的具体性呈现，它们仍有可能被视为充分开发，从而脱离纯粹思想的领域，进入详细表达的范畴。正如 Jacob L.J.大法官在早先的一项判决中所言：

"[W]here an ‘idea’ is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the ‘idea’ is detailed, then there may be infringement. It is a question of degree." ³⁰
"[W]当某个‘创意’足够宽泛时，即使原创作品体现了该创意，单纯借鉴该创意也不会构成侵权。但如果该‘创意’足够具体，则可能构成侵权。这是一个程度问题。" ³⁰

As with television formats, the subject-matter of copyright protection for gameplay in videogames is the combination of various elements which make up the gameplay experience rather than single elements. In jurisdictions where television formats are regarded as copyright works, they tend to be treated as combinations or compilations of the different elements of which they are composed; thus the Dutch Court of Appeal in *E.I.P.R. 870 Castaway Television Productions and Planet 24 Productions v Endemol concluded that an infringement will occur only where a similar selection of these elements have been copied in an identifiable way.³¹ Applying the same reasoning to videogames, the assessment of whether a subsequent developer has copied the whole or a substantial part of the gameplay of an earlier videogame will have to be carried out on the basis of whether the two videogames play similarly as a whole, rather than an element-by-element comparison, though some analysis at the latter level is clearly necessary.³² For this reason, where two videogames share only one or a few points of similarity in terms of gameplay elements, it will rarely be possible to make out a case that the subsequent videogame has copied a substantial part of the gameplay of the earlier one, particularly where the shared elements are commonplace ones. This would address the fears of many within the videogame community that copyright protection of gameplay would enable individual developers to obtain an effective monopoly over basic game mechanics such as running and jumping. In addition, it should also be remembered that even where two videogames have a large number of gameplay elements in common, these elements may still be combined in a different way in each videogame so as to produce two quite dissimilar gameplay experiences.
与电视节目模式类似，电子游戏中受版权保护的游戏玩法主题是由构成游戏体验的多种元素组合而成，而非单一元素。在将电视节目模式视为版权作品的司法管辖区，这些模式通常被视为其组成元素的组合或汇编；因此，荷兰上诉法院在*E.I.P.R. 870 Castaway Television Productions and Planet 24 Productions 诉 Endemol 案中裁定，只有当这些元素以可识别的方式被复制时才会构成侵权。 ³¹ 将同样的逻辑应用于电子游戏，判断后续开发者是否复制了早期电子游戏的全部或实质性游戏玩法，必须基于两款游戏整体玩法是否相似，而非逐元素对比，尽管后者层面的分析显然必不可少。 ³² 因此，若两款电子游戏仅在少数游戏玩法元素上存在相似点，尤其当这些共有元素属于常见设计时，很难认定后续游戏复制了早期游戏的实质性玩法部分。这将消除游戏界许多人的担忧，即游戏玩法版权保护会导致个别开发者对基本游戏机制（如奔跑和跳跃）形成实际垄断。此外还需注意，即使两款游戏拥有大量相同的玩法元素，这些元素仍可能以不同方式组合，从而产生截然不同的游戏体验。

At present, it is submitted that the courts need not concern themselves overmuch with the difficulty of drawing a line between the taking of general themes and gameplay ideas and the copying of the detailed implementation of these ideas; thus far, commentators within the videogame industry have shown themselves to be adept at making this very distinction, and could be called upon to give expert evidence where necessary. For instance, in addressing the Dream Heights controversy, Nimblebit made it clear that they were not opposed to Zynga’s use of themes and settings that were similar to those of Tiny Tower; rather, they objected to Zynga’s inclusion of "an innumerable number of details in the game that were painstakingly crafted to be identical to Tiny Tower", including the number of businesses available in-game, the number of workers employed by each business, the number of products produced and the manner in which they are stocked, the maximum number of residents each apartment, and the presence of VIP elevator riders that perform identical functions across both videogames.³³ This degree of elaboration would appear sufficient to satisfy the requirement of "certainty in the subject matter over which copyright protection is granted" as set out by the Privy Council in Green.
目前，我们认为法院无需过分纠结于区分借鉴通用主题与游戏玩法理念与复制这些理念具体实现之间的界限；迄今为止，视频游戏行业的评论者已展现出擅长进行此类区分的才能，必要时可传唤其作为专家证人提供证据。例如，在回应《Dream Heights》争议时，Nimblebit 明确表示并不反对 Zynga 使用与《Tiny Tower》相似的主题和场景设定，而是反对 Zynga 在游戏中包含"无数精心设计得与《Tiny Tower》完全一致的细节"，包括游戏中可用的商业设施数量、每家商户雇佣的员工人数、生产的产品数量及其库存方式、每间公寓的最大居民容纳量，以及两款游戏中功能完全相同的 VIP 电梯乘客设定。 ³³ 这种程度的细节阐述似乎足以满足枢密院在 Green 案中提出的"授予版权保护的主题需具有确定性"的要求。

Even in the case of a gameplay experience that has been elaborated in sufficient detail to move it from the realm of general ideas into that of protectable expression, there remains the issue of fitting it into one of the exhaustive categories of copyright subject-matter set out in the CDPA.³⁴ Four different categories of subject-matter were relied upon by the claimant in Nova Productions to support its claim: a literary work, being the underlying computer program; artistic works, being the bitmap graphics and the frames generated and displayed to the player; a dramatic work embodied in the videogame itself; and film copyright. Each of these will be examined in turn.
即便游戏玩法体验已详尽阐述，足以将其从一般概念的范畴提升至可受保护的表达层面，仍需解决如何将其归入《版权、设计与专利法案》(CDPA)所列举的详尽版权主题类别中的问题。在 Nova Productions 一案中，原告为支持其主张援引了四种不同的主题类别：作为基础计算机程序的文字作品；作为位图图形及向玩家生成并展示的帧画面的艺术作品；体现在视频游戏本身的戏剧作品；以及电影版权。以下将逐一审视这些类别。

It may, at first glance, appear intuitive to locate gameplay within the videogame’s underlying computer program; after all, it is the computer program which ultimately implements the various mechanics, rules, goals, obstacles and rewards that make up gameplay. Replicating the gameplay of a particular videogame would, under this view, amount to the taking of a substantial part of its underlying computer program.
乍看之下，将游戏玩法归入视频游戏的基础计算机程序似乎直观合理；毕竟，正是计算机程序最终实现了构成游戏玩法的各种机制、规则、目标、障碍和奖励。依此观点，复制特定视频游戏的玩法，等同于提取其基础计算机程序的实质性部分。

This approach, however, is incompatible with the current position concerning the nature of the copyright protection for computer programs. It has been established through case law that copyright subsists in the literal code of a program, as well as the more detailed aspects of certain non-literal aspects, such as the program structure and architecture.³⁵ It is, however, difficult to say how far copyright protection extends beyond this relatively low level of abstraction; indeed, it seems almost certain that it would not extend to the screen outputs generated by a computer program. Such was the conclusion reached by Pumfrey J. in the case of Navitaire Inc v Easyjet Airline Co (Navitaire), in holding that no infringement occurs where a subsequent program is written in order to produce outputs identical to those generated by an earlier one, provided that the code of the earlier program has not been copied.³⁶ This principle was applied in Nova Productions itself by the courts in concluding that, as the defendants had copied neither the literal code nor the architecture of Nova’s underlying computer program, but had only taken generalised ideas which were reflected in its output, they had not taken a substantial part of the program. *E.I.P.R. 871
然而，这一观点与当前关于计算机程序版权保护性质的立场并不相容。判例法已确立，版权存在于程序的字面代码中，也涵盖某些非字面层面的更细致部分，如程序结构与架构。 ³⁵ 但版权保护在超越这一相对较低抽象层次后能延伸多远尚难断言；事实上，几乎可以肯定的是，它不会延伸至计算机程序生成的屏幕输出。这正是 Pumfrey 法官在 Navitaire Inc 诉 Easyjet Airline Co 案（Navitaire）中得出的结论，其判定若后续程序编写仅为产生与先前程序相同的输出，且未复制先前程序的代码，则不构成侵权。 ³⁶ 法院在 Nova Productions 案本身也适用了这一原则，认定被告既未复制 Nova 底层计算机程序的字面代码，也未复制其架构，仅采纳了反映于输出中的概括性构思，故未实质性占用该程序。*E.I.P.R. 871

The correctness of this position has since been reinforced by the decision of the CJEU in Bezpečnostní softwarová asociace—Svaz softwarové ochrany v Ministerstvo kultury (BSA),³⁷ where a graphic user interface was held not to constitute a form of expression of a computer program within the meaning of the Software Directive ³⁸ and therefore not protectable as such, as well as the Opinion recently issued by the Advocate General in the case of SAS Institute Inc v World Programming Ltd,³⁹ where he considered that the functionality of a computer program could not, as such, form the subject-matter of copyright protection under the Software Directive. It appears necessary, then, to look elsewhere for a category of subject-matter under which gameplay may be accommodated.
这一立场的正确性随后得到了欧盟法院在 Bezpečnostní softwarová asociace—Svaz softwarové ochrany 诉 Ministerstvo kultury 案（BSA） ³⁷ 中的判决强化，该判决认为图形用户界面不构成《软件指令》 ³⁸ 意义上的计算机程序表达形式，因此不能作为此类保护；以及最近总检察长在 SAS Institute Inc 诉 World Programming Ltd 案 ³⁹ 中发表的意见，他认为计算机程序的功能本身不能成为《软件指令》下版权保护的客体。因此，似乎有必要在其他类别中寻找可以容纳游戏玩法的保护客体。

The case for treating gameplay as part of the artistic works which make up a videogame can be dealt with briefly. It was held in Nova Productions that artistic copyright subsists in the bitmap graphics used in a videogame as well as the composite frames generated from them, as they amount to "graphic works" within the meaning of the CDPA. However, as any assessment of the similarities and differences in such works will be carried out on the basis of a visual comparison between individual bitmaps and frames, it is difficult to see how it can accommodate gameplay, which is above all a dynamic aspect of a videogame that becomes apparent only through player interaction. This is borne out by the statement of Jacob L.J. in the same case to the effect that graphic works are "static, non-moving" artefacts, and that a series of still images which provides the illusion of movement possesses no further copyright beyond that which subsists in each individual image. Under the CDPA, his Lordship further indicated, moving images are in fact protected by way of copyright in films. It is to this next category that the discussion will now turn.
将游戏玩法视为构成电子游戏的艺术作品一部分的观点可以简要处理。在 Nova Productions 案中，法院认为用于电子游戏的位图图形及由其生成的复合帧享有艺术版权，因为它们属于《版权、设计与专利法》（CDPA）意义上的“图形作品”。然而，由于对此类作品相似性和差异性的任何评估都将基于对单个位图和帧的视觉比较，很难看出如何能涵盖游戏玩法——这主要是通过玩家互动才能显现的电子游戏动态方面。这一点得到了 Jacob L.J.在同一案件中的陈述支持，即图形作品是“静态、非移动”的人工制品，而提供运动幻觉的一系列静止图像除了存在于每个单独图像的版权外，并无额外版权。根据 CDPA，他进一步指出，移动图像实际上是通过电影版权来保护的。讨论现在将转向下一个类别。

Protecting the audiovisual output generated by a videogame as a film would bring the United Kingdom in line with the approach taken in an increasing number of jurisdictions, both within the EU and outside it, where a videogame’s audiovisual display is protected as a film, a cinematographic or audiovisual work, or some such equivalent.⁴⁰ Perhaps more importantly, the nature of a film, being at its core a series of moving images, appears better suited than static graphic works to capturing the dynamic character of gameplay.⁴¹
将电子游戏产生的视听输出作为电影进行保护，将使英国与欧盟内外越来越多司法辖区的做法保持一致，这些地区将电子游戏的视听展示作为电影、电影作品或视听作品或其等效物加以保护。 ⁴⁰ 或许更重要的是，电影的本质在于其核心是一系列动态图像，相比静态图形作品，似乎更适合捕捉游戏过程的动态特性。 ⁴¹

The main difficulty with this approach lies in the "thin" protection afforded to films under copyright law in the United Kingdom,⁴² which has been highlighted in discussions on the desirability of protecting multimedia works generally as films.⁴³ The CDPA defines a film as "a recording on any medium from which a moving image may be any means be produced".⁴⁴ This was interpreted in Norowzian v Arks Ltd (No.1) ⁴⁵ to mean that film copyright only prohibits the copying of the whole or a substantial part of the recording itself; a reshooting of an entire film sequence, in which not a single frame of the original film itself had been included, was thus not held to be a copy of the film.⁴⁶ Film copyright would therefore be of little assistance to videogame developers whose gameplay has been cloned. Indeed, it was for this very reason that the claim on film copyright in Nova Productions was not pursued further at trial, Nova having conceded that, as the defendants were not alleged to have copied Pocket Money by photographic means, they could not be said to have infringed any film copyright subsisting therein. In addition, given the sheer diversity of videogame genres, it is possible to identify videogames which contain no "moving images" and thus would not amount to films within the meaning of the CDPA; one such example is the genre of the text adventure, in which in-game events are conveyed through passages of text.⁴⁷
这种方法的主要困难在于英国版权法对电影提供的“薄弱”保护， ⁴² 这一点在关于将多媒体作品普遍作为电影保护的讨论中已被强调。 ⁴³ 《版权、设计与专利法案》（CDPA）将电影定义为“任何可从中通过任何方式产生动态图像的介质上的记录”。 ⁴⁴ 在 Norowzian 诉 Arks Ltd（No.1）案中， ⁴⁵ 这被解释为电影版权仅禁止复制记录本身的全部或实质性部分；因此，重新拍摄整个电影序列，只要未包含原电影的任一帧，就不被视为对电影的复制。 ⁴⁶ 因此，电影版权对那些游戏玩法被克隆的电子游戏开发者帮助甚微。事实上，正是基于这一原因，Nova Productions 案中关于电影版权的主张未在审判中进一步推进，Nova 承认，由于未指控被告通过摄影手段复制《Pocket Money》，故不能认定其侵犯了其中存在的任何电影版权。此外，鉴于电子游戏类型的极度多样性，可以识别出不含“动态图像”的电子游戏，因而无法构成 CDPA 意义上的电影；文本冒险类游戏即为一例，其游戏内事件通过文本段落传达。 ⁴⁷

Notwithstanding the narrow scope of copyright protection afforded to films, it has been held in Norowzian v Arks Ltd (No.2) ⁴⁸ that a film may in itself embody a dramatic work, which benefits from "thicker" protection, *E.I.P.R. 872 regardless of whether it is a recording of such a work. This raises the possibility that a videogame which falls within the definition of "film" as set out in the CDPA may also be protected as a dramatic work; thus the act of recreating its audiovisual output, including gameplay aspects, could conceivably amount to the copying of its underlying dramatic work. However, this possibility appears to have been negated by the decision in Nova Productions, as we shall see shortly.
尽管电影享有的版权保护范围有限，但在 Norowzian 诉 Arks Ltd（第 2 号）案 ⁴⁸ 中已判定，电影本身可以体现为戏剧作品，从而获得“更厚实”的保护，*E.I.P.R. 872 不论其是否为该作品的录制。这引发了一种可能性，即符合《版权、设计与专利法案》（CDPA）中“电影”定义的电子游戏，也可能作为戏剧作品受到保护；因此，重现其视听输出（包括游戏玩法）的行为，理论上可构成对其基础戏剧作品的复制。然而，这一可能性似乎已被 Nova Productions 案的裁决所否定，我们将在后文详述。

In Norowzian v Arks (No.2), Nourse L.J. defined a dramatic work as "a work of action, with or without words or music, which is capable of being performed before an audience".⁴⁹ The requirement of "performance before an audience" was given a broad meaning in that case to include the showing of the work to an audience, and was not confined to the consideration of whether the acts depicted in the work were capable of being physically performed before an audience. This liberal definition of the "performability" requirement inclined commentators at the time towards the view that the audiovisual output of a videogame would be capable of being protected as a dramatic work, as it would generally constitute a "work of action".⁵⁰ The interactive nature of a videogame, together with the fact that a somewhat different audiovisual display would be generated each time it was played, did not appear to be an obstacle to this categorisation.⁵¹
在 Norowzian 诉 Arks（第 2 号）案中，Nourse 大法官将戏剧作品定义为“一种动作作品，无论有无语言或音乐，能够为观众表演”。 ⁴⁹ 该案对“为观众表演”的要求作了广义解释，包括向观众展示作品，而不仅限于考量作品中描绘的动作是否能在观众面前实际表演。这一对“可表演性”要求的宽松定义，使当时的评论者倾向于认为电子游戏的视听输出能够作为戏剧作品受到保护，因为它通常构成一种“动作作品”。 ⁵⁰ 电子游戏的互动性，以及每次游玩时生成的视听表现会有所不同的事实，似乎并未阻碍这一分类。 ⁵¹

This view, however, was not shared by the trial court in Nova Productions. It was Nova’s contention that the visual experience generated by Pocket Money, being an ordered sequence of events within an overall framework, amounted to a dramatic work. This claim was rejected by Kitchin J. at first instance, and was not argued further on appeal. In doing so, Kitchin J. applied both the definition of "dramatic work" given in Norowzian v Arks (No.2) and the requirement that a dramatic work "must have sufficient unity to be capable of performance" as set out by the Privy Council in Green,⁵² and concluded that Pocket Money did not demonstrate sufficient unity to be capable of performance, as the particular sequence of images displayed on the screen would vary depending on the manner in which the videogame was played.⁵³
然而，这一观点并未得到 Nova Productions 案初审法院的认同。Nova 主张，由《Pocket Money》生成的视觉体验——作为整体框架内有序事件序列——构成了一部戏剧作品。该主张在一审时被 Kitchin 法官驳回，且未在上诉中进一步提出。Kitchin 法官在裁决时同时援引了 Norowzian 诉 Arks 案（第二号）中"戏剧作品"的定义，以及枢密院在 Green 案中确立的戏剧作品"必须具备足够统一性以能够被表演"的要求 ⁵² ，并最终认定《Pocket Money》缺乏足够的统一性来支持表演，因为屏幕上呈现的具体图像序列会随游戏操作方式的不同而变化 ⁵³ 。

This restrictive reading of the "sufficient unity" requirement precludes videogames from being classified as dramatic works. In any event, even without such a requirement, it remains highly unlikely that the category of dramatic works would be wide enough to encompass the entire spectrum of videogames. It has been argued that implicit in the common understanding of the term "dramatic work" is the central notion that such a work must convey some kind of story.⁵⁴ Based on this argument, videogames with a discernible narrative structure, such as those in the role-playing and adventure genres, could feasibly be classified as dramatic works in the absence of a restrictive requirement of sufficient unity; however, this would not apply to videogames with few or no narrative elements, including puzzle games such as Tetris.⁵⁵
对"足够统一性"要求的这种限制性解读，排除了电子游戏被归类为戏剧作品的可能性。即便不考虑这一要求，戏剧作品这一类别也不太可能宽泛到涵盖所有类型的电子游戏。有观点认为，在"戏剧作品"这一术语的普遍理解中，隐含着一个核心概念，即此类作品必须传达某种故事性 ⁵⁴ 。基于此论点，具有可辨识叙事结构的电子游戏（如角色扮演类和冒险类游戏），在缺乏"足够统一性"这一限制性要求的情况下，理论上可被归类为戏剧作品；但这并不适用于叙事元素稀少或缺失的电子游戏，包括如《俄罗斯方块》这类益智游戏 ⁵⁵ 。

Having exhausted the possible options in list of copyright subject-matter set out in the CDPA, the quest for a copyright category which is capable of accommodating gameplay in videogames appears to lead towards the creation of a new category of copyright works, which would have to be carried out through a legislative amendment.
在《版权、设计和专利法》（CDPA）所列版权主题清单中穷尽所有可能选项后，寻求能够容纳电子游戏玩法的版权类别似乎导向了创建新型版权作品类别的必要性，而这必须通过立法修正来实现。

The decision of the CJEU in the BSA case may go some way towards providing the impetus for such an enactment. While the CJEU did conclude that a graphic user interface could not be protected as a computer program, it also went on to hold that such an interface could nevertheless "as a work, be protected by copyright if it is its author’s own intellectual creation".⁵⁶ The CJEU did not elaborate further on the type of work which such an interface should be classified as for copyright purposes. It has been suggested that UK copyright law already complies with this requirement, as the graphic elements of a user interface will be protected as artistic works in their own right, provided they fulfil the requirement of originality.⁵⁷ However, given the CJEU’s usage of the phrase "as a work", it is possible to interpret the decision in BSA as requiring the protection of a graphic user interface as a single work, instead of a number of artistic works. This latter interpretation finds some support in the conclusion of the CJEU, in the same case, that the television broadcasting of a graphic user interface did not constitute communication to the public of a work protected by *E.I.P.R. 873 copyright within the meaning of the Infosoc Directive,⁵⁸ as the broadcast would be received by viewers in a purely passive manner, without the possibility of accessing what it described as the "essential element" characterising the interface, namely "interaction with the user".⁵⁹ Had the graphic user interface in question been regarded solely as consisting of artistic works, the television broadcast would undoubtedly have constituted an infringing communication of these works to the public.⁶⁰ That the CJEU chose not to take this view indicates that it considered a graphic user interface to be something other than—or at least beyond—an artistic work or works, and which moreover possesses the essential element of interactivity.
欧盟法院在 BSA 案中的裁决可能在一定程度上推动了此类立法的进程。虽然欧盟法院最终认定图形用户界面不能作为计算机程序受到保护，但也进一步裁定此类界面“作为作品，若系作者独创性智力成果，仍可受版权保护”。 ⁵⁶ 欧盟法院并未进一步阐明此类界面在版权目的下应归类为何种作品。有观点认为，英国版权法已符合这一要求，因为用户界面的图形元素只要满足原创性标准，即可作为独立的艺术作品受到保护。 ⁵⁷ 然而，鉴于欧盟法院使用了“作为作品”这一表述，可将 BSA 案裁决解读为要求将图形用户界面作为一个整体作品而非多个艺术作品进行保护。后一种解读在欧盟法院同案结论中获得一定支持——该结论认为，对图形用户界面的电视播送不构成《信息社会指令》意义上受*E.I.P.R. 873 版权保护的作品的公开传播， ⁵⁸ 因为观众将以完全被动的方式接收播送内容，无法接触裁决所称表征界面的“核心要素”，即“与用户的交互性”。 ⁵⁹ 若涉案图形用户界面仅被视为由艺术作品构成，则电视播送无疑构成对这些作品的侵权性公开传播。 ⁶⁰ 欧盟法院未采纳此观点，表明其认为图形用户界面不同于（或至少不限于）一个或多个艺术作品，且具有交互性这一核心要素。

This new copyright category, then, should be capable of encompassing audiovisual outputs that are generated by a computer program and incorporate the element of interactivity—a definition wide enough to include graphic user interfaces and videogames as well as other types of multimedia. In the literature on copyright protection for multimedia products generally, it has been suggested that one such option would be the introduction of a United States-style "audiovisual works" category,⁶¹ which is defined as "works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices … together with accompanying sounds, if any".⁶² This formulation is wider than that of "film" under the CDPA, most notably because it refers to "a series of related images" without the requirement that they be "moving images", which has been interpreted broadly in the case law of the United States to mean "any set of images displayed as some kind of unit".⁶³ Crucially, the fact that the sequence of images generated by a videogame will inevitably vary each time it is played has been held not preclude it from being protected as an audiovisual work, provided that there is a sufficiently repetitive sequence of a substantial portion of its sights and sounds.⁶⁴
因此，这一新的版权类别应能涵盖由计算机程序生成且包含互动元素的视听输出——该定义范围广泛，足以包括图形用户界面、视频游戏以及其他类型的多媒体。在关于多媒体产品版权保护的文献中，普遍建议引入一种美国式的“视听作品”类别， ⁶¹ 其定义为“由一系列相关图像组成的作品，这些图像本质上旨在通过机器或设备展示……并伴有声音（如有）”。 ⁶² 这一表述比《版权、设计与专利法案》（CDPA）中的“电影”定义更为宽泛，最显著的原因在于它仅要求“一系列相关图像”，而无需是“动态图像”。美国判例法对此进行了广义解释，认为“动态图像”指“以某种单元形式展示的任何一组图像”。 ⁶³ 关键在于，即便视频游戏生成的图像序列每次运行都会变化，只要其画面与声音的主体部分存在足够重复的序列，仍不影响其作为视听作品受到保护。 ⁶⁴

The experience of the US courts in dealing with videogames as audiovisual works, however, reveals a major shortcoming: in many cases, they have tended to emphasise the similarities and differences in the graphics and sounds used by the videogames in issue, while paying little attention to similarities and differences in the way they play.⁶⁵ Perhaps the clearest example of this is the case of Atari v North American Philips Consumer Electronics,⁶⁶ where the Seventh Circuit held that the defendant’s maze-chase game, K.C. Munchkin, was substantially similar to Atari’s popular Pac-Man, primarily on the basis of graphical similarities in the appearance of the in-game characters,⁶⁷ and notwithstanding significant differences in gameplay.⁶⁸ If the United Kingdom were to implement a similar copyright category in order to accommodate works such as graphic user interfaces, multimedia products and, not least, videogames, the courts would have to be careful to steer clear of this pitfall by bearing in mind the importance of the interactivity inherent in these works to any copyright analysis.
然而，美国法院在处理电子游戏作为视听作品的经验揭示了一个主要缺陷：在许多案例中，他们往往过于关注争议电子游戏在图形和声音上的相似与差异，却很少关注游戏玩法上的异同。 ⁶⁵ 或许最明显的例子是 Atari 诉北美飞利浦消费电子公司一案， ⁶⁶ 第七巡回法院认定被告的迷宫追逐游戏《K.C. Munchkin》与 Atari 广受欢迎的《吃豆人》存在实质性相似，主要依据是游戏角色外观的图形相似性， ⁶⁷ 尽管两者在玩法上存在显著差异。 ⁶⁸ 如果英国为了适应图形用户界面、多媒体产品尤其是电子游戏等作品而实施类似的版权类别，法院必须谨慎避免这一陷阱，牢记这些作品内在的互动性对任何版权分析的重要性。

This article has made out an argument in favour of protecting gameplay in videogames through copyright, and has demonstrated that the decision in Nova Productions does not preclude the possibility of such protection, provided that the aspects for which protection is sought are delineated in sufficient detail and are framed as the appropriate category of copyright subject-matter. To the latter end, it has been suggested that a new copyright category similar to that of "audiovisual works" under the copyright law of the United States would be the most appropriate vehicle for accommodating gameplay in videogames as well as other works of an interactive nature. Notwithstanding the decision in BSA, however, there appears to be little impetus for the creation of such a new category at present; it may be necessary to await further pronouncements from the CJEU on the nature of the copyright protection to be afforded to *E.I.P.R. 874 graphic user interfaces, or, failing that, for aggrieved videogame developers whose gameplay has been cloned to bring their case to court or before the relevant policy-makers.
本文提出了支持通过版权保护电子游戏中游戏玩法的论点，并论证了 Nova Productions 案的裁决并不排除此类保护的可能性，前提是所寻求保护的方面能够以足够详细的方式界定，并归类为适当的版权客体范畴。为此，文章建议借鉴美国版权法中的“视听作品”类别，创建一个类似的新类别，作为容纳电子游戏玩法及其他交互性质作品的最适宜载体。然而，尽管有 BSA 案的裁决，目前似乎缺乏推动此类新类别创建的足够动力；可能需要等待欧盟法院对图形用户界面版权保护性质的进一步阐释，或者，若无此进展，则由那些游戏玩法被克隆的受害游戏开发者将案件诉诸法院或提请相关决策者关注。