Award-winning paper, "On the property rights of network virtual property"-won the third prize of the civil group of Shandong lawyer's excellent paper.

Content Summary

The emergence of the Internet has promoted the growth of network virtual property and greatly enriched people's lives. At the same time, the resulting controversy has increasingly become the focus of debate. Network virtual property refers to a digital code that does not exist in real life, which can be traded on the Internet and has property attributes. Network virtual property is virtual and needs to be attached to the Internet platform, which is different from the traditional sense of property. However, because of its value, objective existence and other characteristics, it can be regarded as a special thing protected by property rights. However, China's legislation on network virtual property is still lagging behind and should be included in the Property Law to protect it. The protection of network virtual property as the object of property rights is conducive to the maximum protection of the interests of users, to avoid malicious third-party infringement when users are difficult to protect their rights, to balance the rights and interests between operators and users, while giving users a better game experience, mobilize the enthusiasm of users, so as to promote the development of the game industry.

 

Key words:

network virtual property property property

 

1. Network Virtual Property Overview

 

(I) concept

 

In the law because China has not formally introduced specific relevant laws and regulations, there is no exact definition of network virtual property, the academic community generally will be the network virtual property in a broad sense and narrow definition.

 

In a broad sense, its scope is vast, and all the virtual, digitized forms of property on the network are virtual property in a broad sense. It is not limited to online games. Such as social network accounts, electronic E-mail, virtual currency, etc. Professor Yang Lixin of the National People's Congress once defined it as "network virtual property refers to the virtual network itself and the electromagnetic records with property that exist on the network."

 

The network virtual property in the narrow sense refers to the property that has exchange value on the network, can be traded, circulate in reality and obtain actual benefits. Such as online games to obtain virtual equipment, pets and so on. It usually exists in online games.

 

This paper holds that the word "network virtual property" can be separated: "network", "virtual" and "property". First of all, "network", obviously, refers to those that exist on the Internet, depend on the existence of the Internet, and operate with the help of the Internet; secondly, "virtual" refers to unreal, hypothetical, fictitious, and does not exist in real life. The physical object in life, that is, a digital code that exists on the Internet; finally, "property", although the network virtual property is virtual, it is not true, but it is valuable, so it should have the property attribute in the legal sense. Although it has virtuality, which is different from the currency in reality, it still has the characteristics of value and objective existence.

 

In summary, this paper holds that the network virtual property can be defined as an electromagnetic signal or digital code that is attached to the Internet and can be traded, does not exist in reality, and has property attributes.

 

Since most of the disputes in online virtual property also occur in online games, and most of the virtual property refers to the virtual property in online games, this paper only studies from the scope of online games.

 

Status of (II) protection

 

1. The current situation of the protection of virtual property in China's network.

 

According to statistics, as of December 2018, the number of online game users in my country reached 0.484 billion, and as of June 2019, the number of online game users in my country reached 0.494 billion, an increase of nearly 10 million from the end of 2018, accounting for 57.8 of the total number of Internet users.%.

 

The scale of my country's online game market is huge, and users spend a lot of money in the game everywhere. While promoting the development of my country's network, the resulting disputes about online virtual currency have also increased sharply. However, what is extremely inconsistent with the identity of China's Internet power is that China's legislation on network virtual property is still lagging behind and blank compared with other countries. As the country attaches great importance to the development of the Internet, the State Council and the Ministry of Culture have issued regulations on the Security Protection of computer Information systems and the decision of the standing Committee of the National people's Congress on maintaining Internet Security to maintain Internet order, but there are few provisions on the protection of virtual property. Nowadays, more and more countries such as South Korea, the United States, Japan, etc. have begun to attach importance to the value of the network virtual property, the introduction of relevant policies and laws to regulate the use of network virtual property. However, so far in our country, judges can only refer to and follow Article 13 of the the People's Republic of China Constitution and Article 75 of the the People's Republic of China General Principles of Civil Law and other relevant laws when dealing with cases related to online virtual property. The interim measures for the Administration of online Games, issued by the Ministry of Culture and implemented on August 1, 2010, clearly stipulates for the first time the business units, business activities and legal responsibilities of online games, but there are only six chapters and 39 articles in the measures. for China's huge and complex online game market, this is far from enough, and there are still many loopholes. In order to protect minors, the Measures stipulate that users must be authenticated with real names, but it is difficult to implement full-scale real-name authentication in practice. Since the implementation of the Measures in 2010, there are still many games that do not require users to authenticate with real names, and many users question whether operators can guarantee the security of user information after they use their own real information authentication. The "Interim Measures for the Management of Online Games" has low rank, low effectiveness, insufficient supervision, and it is difficult to fully implement. So far, many online game operators still do not comply with the regulations, such as selling equipment by lottery.

 

A few days ago, Article 127 of the General principles of the the People's Republic of China Civil Law marked that the state began to attach importance to the network virtual property, the network virtual property was formally written into the law of our country, and the state began to attach importance to the development of the Internet. However, in practice, our country needs more specific and implemented relevant laws and regulations to regulate the use of network virtual property, rather than a principled regulation to protect the legitimate rights and interests of citizens.

 

2. Other countries and regions on the network of virtual property legislation to protect

 

In today's global network coverage, the United States, as the founding country of the Internet, has long begun to attach importance to the importance of network virtual property, although there is no special legislation on network virtual property, but the judge through the exercise of discretion to expand the interpretation of the relevant laws and their application to deal with cases. From the court rulings in the cases of Intel Corporation v. three former employees of the company in 1998, and the cases of Bigfoot Partner Corporation and Earth-link Network Corporation v. Wallace, the "king of spam", it can be seen that although the courts in the United States either treat e-mails and e-mail systems as movable property or protect them as private territory, but what is common is that they all protect e-mail and e-mail systems as "things" in the traditional sense, which shows that the United States has affirmed the value of online virtual property and believes that it should be protected as a thing.

 

South Korea has always been a global leader in the Internet, especially when it comes to games. Many popular games were introduced by South Korea. In 2006, South Korea enacted the Game Industry Revitalization Act, which affirmed the value and status of online virtual property. After that, through several amendments to the legal provisions, the formulation of amendments, and gradually improve the relevant legislation. South Korea legislation holds that virtual goods have property value and operators, like banks, simply provide a gaming environment in which virtual property exists independently of it. It can be seen that the South Korea gives the property of the virtual property of the network.

 

In Hong Kong, with the intense discussion of virtual property in the world, scholars and legal workers in Hong Kong have different views on the nature of virtual property. Some scholars believe that virtual property is just a set of electronic data, only users affirm its value is meaningless, and the current law of Hong Kong does not make clear provisions on network virtual property, which is not protected by law; some people advocate that network virtual property is an interest, and the use of the property, such as the sale and transfer of equipment, is also an interest. With the rapid development of network technology in Hong Kong, there are more and more disputes about virtual property, especially the criminal cases about virtual property crimes. The legitimate interests of users are not guaranteed, which seriously disturbs the social order. In order to maintain social stability and protect the legitimate interests of users, Hong Kong has regulated the use and transaction of virtual property by amending the Telecommunications Ordinance and amending various Internet security regulations on a large scale, clearly stipulating that unauthorized access to any data on other people's computers is illegal. Hong Kong legislation believes that online virtual property is not just a set of electromagnetic records, but the result of labor that users have paid time, money and energy, which affirms the value of virtual property. Even if the relevant regulations are amended to protect online virtual property and resolve the disputes caused by it, Hong Kong's legislation on virtual property is still relatively backward compared with the legislation of other countries in the world.

 

In Taiwan, in the "Criminal Law Amendment", electromagnetic records were previously included in the crime of theft as movable property to be protected, affirming the value of network virtual property, users have ownership of their own game currency, pets, etc. and can be transferred and other transactions. But then some scholars put forward that virtual property should not be protected as movable property, and that the theft of virtual property is different from the relevant provisions of the Criminal Law on theft. Therefore, Taiwan deleted the network virtual property from the crime of theft and put it into the crime of obstructing the use of computers in the Criminal Law.

 

2. features

 

With the development of the times, every aspect of life is inseparable from the network, and virtual property has gradually received more attention from people, and its value has gradually been recognized. Although there are still a small number of people who are mainly network operators who deny the value of network virtual property and claim that it is not a property in the traditional sense, the legal circle has already generally recognized the property value of network virtual property, article 127 of the General principles of Civil Law of the People's Republic of China adopted at the Fifth session of the 12th National people's Congress has also been formally written into the law of our country. Although the network virtual property is the property in the legal sense, it also has the characteristics different from the general property.

 

(I) virtuality

 

It can also be said to be dependent. Network virtual property is a kind of digital code attached to the Internet. It is a kind of property that is not available in real life. It is unreal and fictitious. It must be attached to the Internet and the server of the game operator. Once the Internet platform is lost, it loses its meaning of existence. The generation, transfer, sale and elimination of network virtual property all occur in the Internet. The feature of virtuality is the biggest difference between network virtual property and physical property.

 

(II) value

 

As a property, it must have value. It can be seen from two aspects of use value and exchange value: first, users invest time and energy in the game to enrich their virtual property by making copies, acquiring equipment, fighting with others, etc., so as to obtain better game experience, so as to obtain spiritual pleasure, which reflects its use value; Second, users exchange game equipment, game pets or game accounts with other users in the game, there are also users who trade real money and virtual property, and even in many online shopping platforms, there are some professions specializing in game account training, which fully reflects the exchange value. Therefore, the value of the network virtual property can be reflected in any way.

 

(III) objective existence

 

Intangible objects are not intangible objects. Although virtual property only exists in the Internet, it must be attached to the network to exist. It does not exist in real life, but it exists objectively and exists in the disk storage space in the form of pictures, sounds, images and other digital forms. Although you can't touch it, you can see it. It is an objective existence that people can perceive and control.

 

(IV) exclusivity

 

Each user will set different accounts and passwords when registering the game account, and the nicknames of most users in the game are not allowed to be repeated, which ensures the independence of each user account, and the network virtual property existing in the account can only be occupied by the user who registered the account, and the possessor has the right to exclude the nuisance of others, other people, including operators, shall not delete or tamper with the virtual property in the account without authorization.

 

(V) Duration

 

Game operators operate games for a limited period. There are few games that can be operated permanently. In the end, each game will shut down the server, delete data and end the game due to technical problems or losses caused by the reduction of users. This also means that the network virtual property in the game has the same duration as the existing game, and the virtual property does not exist at the end of the game period.

 

3. legal attribute

 

The representative theory of the legal attribute of the virtual property of the (I) network.

 

At the beginning of the 21st century, the Beijing Chaoyang District People's Court tried the first case of my country's online virtual property "Li Hongchen Case". Although the court finally ruled that the defendant should return the transferred equipment and compensation money in the plaintiff's account, it made a notarized and fair judgment. However, the Chaoyang District Court did not characterize the virtual property and avoided the issue of its attribution. It only conducted the trial from the perspective of contract law and did not well to protect the plaintiff's legitimate rights. Therefore, it is urgent to solve the problem of network virtual property as soon as possible, whether in the legal theory circle or in practice. Nowadays, there are four main theories that scholars in the field of civil law theory have the most heated debate:

 

1. New types of property rights

 

Scholars who hold this view believe that the network virtual property has the nature of property rights, such as the network virtual property is objective existence, and has a certain degree of domination, at the same time, they also believe that the network virtual property also has the property of creditor's rights, in its disputes will involve contract debt and tort only debt. "Network virtual property has the dual attributes of property rights and creditor's rights." However, whether the virtual property is divided into property rights or creditor's rights, there are defects, can not be a good tolerance is summarized, so the network virtual property creation as a new type of property rights with both rights characteristics. It is also believed that the property issue being debated is a trend towards the gradual improvement of the entire system of property.

 

2. Intellectual property rights said

 

Although there are differences in this theory on who is the subject of intellectual property rights, most scholars advocate that users enjoy intellectual property rights, and a small number of scholars believe that the rights should belong to operators, but in any case they all advocate that virtual property rights are a kind of intellectual property rights. There are two views: one is that the network virtual property is the crystallization of operators' wisdom. Operators create original network virtual property such as game equipment, game characters and game play through mental and intellectual expenditure. Therefore, the intellectual property rights belong to the operators, and users only have the right to use the game characters and equipment. The other is that operators only provide platforms and basic rules, given many roles, equipment, pets, etc. to choose from, specifically, users create roles and games with their own characteristics by consuming time and energy, matching different game equipment and game pets, etc., which is the user's mental expenditure. Novelty and original intellectual results should be the user's labor results and the user's intellectual property rights.

 

3. Claims said

 

Scholars who hold this view argue that the view of property rights is flawed and does not well accommodate the network virtual property, and that virtual property such as game equipment owned by users should be classified as claims. Scholars who hold this view believe that users are creditors and operators are debtors. The user pays to purchase the game service provided by the operator is a contractual relationship, and the creditor pays the money to request the debtor to provide the game service. "The virtual property of the network plays an important role as a certificate of rights indicating the relationship between creditor's rights and debts, and to some extent has the nature of bearer securities-a formatted certificate representing a certain property right." It is also a "contract".

 

4. Property rights said

 

With the advancement of globalization and the rapid development of economy and society, the concept of things in the traditional sense is facing challenges, and the concept and scope of real rights are constantly expanding. Things in modern society should not be limited to physical things. Professor Yang Lixin also believes: "As long as there is the possibility of legal exclusive domination or management, can be identified as a thing" claim that the network virtual property is the user spent a lot of time and money to create data information, should be treated as a thing, and users enjoy the ownership of the property, into the protection of the property law. Although the network virtual property has the characteristics of the traditional sense of the object, but because it can only exist on the Internet this virtual characteristics, and does not belong to the civil law definition of the object, it should be recognized as a special thing. This view is supported by most scholars in the legal field. And judging from the results of the case, the United States, South Korea, etc. tend to treat online virtual property as a crop.

 

(II) a brief assessment of the network virtual property representative theory of this paper.

 

Article 104 of the General Principles of the People's Republic of China Civil Law (Draft) of our country recently stipulated that network virtual property should be stipulated as the object of real right, but Article 127 of the General Principles of the People's Republic of China Civil Law passed at the fifth session of the 12th National People's Congress later deleted the draft article of network virtual property as the object of real right, which means that in the theoretical circle, although the determination of the legal nature of network virtual property is the mainstream, but there is still a big controversy, can not be easily concluded.

 

1. New types of property rights

 

In this paper, the scientists who support the new property right theory exaggerate the uniqueness of network virtual property, which has the characteristics of things in the traditional sense, and involves both contractual debts and tort debts. On the surface, it satisfies both but its uniqueness is also very prominent that it is different from real rights and claims. The emergence of a new type of property rights should have its own unique system and mechanism, and after a long and rigorous demonstration, the process is complex, the cost is large, and the relatively stable civil law at this stage is in legislation and specific laws. Implementation and other aspects put forward a greater challenge. It would be too hasty and one-sided to create a new type of property right simply because it is virtual. This paper holds that for the network virtual property, whether it is identified as property rights or claims, although there are unreasonable places, but through the expansion of the interpretation of the relevant provisions and appropriate amendments can still be accommodated. Therefore, it is unreasonable to advocate the protection of network virtual property rights as a new type of property rights.

 

2. Claims said

 

This paper holds that the scientists who support the theory only divide the network virtual property into creditor's rights on the surface, but the specific details are not noticed. First, the user needs to register an account before entering the game, and a format contract written by the operator will automatically pop up. Each user must check the "agree" option to sign the contract with the operator regardless of whether he has any objection to the content of the contract, otherwise the user will not be able to enter the game. The contract signed by each user of this game is the same, the obligations of the operator to each user are the same, and the services provided are the same. According to the theoretical nature of the creditor's rights, the value of each user's account at the time of resale is the same, but in practice, some accounts can sell tens of thousands or even hundreds of thousands of prices, but some accounts are not bought. Because "although the virtual property in the game is pre-set by the developer in the game software and systematically generated during the game, there are differences in the type and quantity of virtual property that each game player can get through their own efforts." it is precisely because of these differences that the value of each account is different. Second, the format contract signed between the operator and the user only stipulates the rights and obligations of the operator and the user, but when a malicious third party infringes, that is, when there is a conflict between the user and the user, there is no contract basis, which is not conducive to safeguarding the user. Rights. Third, since the doctrine advocates that the user is the creditor and the operator is the debtor, there is no need to notify the debtor when the user transfers the account. And some users because they do not want to disclose their real information or easy to resell and other factors in the registration account directly choose the "tourist login" option, do not need to fill in any personal information. In the process of playing games, although operators will remind users to log in with their real names according to the Interim Measures for the administration of online games, most games do not force users to log in with their real names. In order to attract more players, many games do not set up real name registration steps at all, which leads to the contract debtor not knowing the specific information of his creditors. These points are different from claims in the traditional sense. Finally, the network virtual property can be traded with each other, is tradable, and is available property, with value and other monetary property properties, the doctrine does not make sense at this point.

 

3. Intellectual property rights said

 

Whether the holding subject is a user or an operator, on the surface, the equipment, currency, pets, etc. in the game need a certain carrier, which can be copied and has novelty and creativity. However, from the basic characteristics of traditional intellectual property rights, there is a big difference between the two. First of all, the network virtual property is "no body", but this does not mean that it is invisible, it can not be touched, but it is not invisible, it can be seen by us, it is objective. Network virtual property is composed of complex electronic data, which exists through images, sounds, images, etc. attached to the network server as a carrier. For example, open your "package" in the game. Although the various equipment or pets inside cannot be directly touched, they can be seen and operated. As mentioned in the previous characteristics of this paper, the network virtual property has an objective existence. Secondly, intellectual property rights are protected within the time period stipulated by the law, which is time-sensitive and accurate. For example, the protection period of invention patent in China is 20 years, but the duration of network virtual property cannot be predicted by law and is clearly given a fixed time, because its duration is determined by the duration of the game server, the length of the server's survival is determined by uncertain factors such as the number of users, how much profit, and technical support. The law cannot predict when the user gets tired of the game and there are fewer users or when the server stops running. If the server keeps running, the various equipment, characters, currency, etc. in the game will always exist. For example, the game "Fantasy Westward Journey" developed by NetEase 14 years ago has been running so far and is still popular with users. However, the game "Area 7" released by the 175 platform in 2010 has been running for less than a year. The operation of the server was stopped. Again, intellectual property is proprietary. However, in online games, game equipment is not enjoyed by a user alone, and other users cannot be excluded from using the same equipment or the same equipment combination. Finally, intellectual property rights are geographically restricted, but in the game, as long as the operator achieves the technology, players from all over the world can play the same game together. For example, the popular hand tour "Onmyoji" in 2016, the game is not only open to Chinese users, but also Japanese users can participate together. There is also the "League of Legends" developed by the American Fist Game Company. Not only American users can play, but users in mainland China can also experience it under the agency operation of Tencent, and Fist is committed to promoting the development of the global electronic economy. Online game professional leagues, etc. In summary, network virtual property rights are completely inconsistent with any of the four basic characteristics of intellectual property rights-intactness, timeliness, exclusivity, and regionality.

 

4. Property rights said

 

Some scholars agree that the network virtual property as the object of property rights, the use of property law to protect. The author agrees with the view of taking the network virtual property as the real right. The reasons are as follows:

 

First, some scholars believe that users only enjoy the right to use virtual property, but from its production point of view, operators only stipulate the game play and the types of game equipment, pets, etc. in advance, and formulate a big rule, but each user In the process of playing the game, through their own wisdom and efforts, they obtain different numbers and types of characters, equipment, pets, etc. in the game. This is the result of the user's labor. Moreover, "if the ownership of the network virtual property belongs to the online game operator, then the operator will be exempted from liability to delete the virtual property of the game player, which is obviously unfair to the players who invest a lot of money and energy." Therefore, the ownership subject of the network virtual property should be the user.

 

Second, the network virtual property has the property right attribute of real currency, but the Internet, the subject to which the network virtual property is attached, is virtual, so the network virtual property can be regulated as a special kind of object.

 

Thirdly, the reason why some scholars don't support the theory of real right is that "in terms of the exclusivity of real right... when players want to exercise various rights on the network virtual property, they must first be restricted by the game operators... and at the same time, they will be affected by the state of the servers provided by the operators...". This view holds that users can't control their game accounts after the operators shut down the servers, so think this is repulsive with the exclusivity of property rights. This view is incorrect. The operator and the user have a service contract relationship. The operator provides services for the user and gives the user an environment and platform to control the game. The user has absolute exclusivity to the network virtual property. No one, including the operator, may modify or delete the network virtual property of the right holder without the consent of the right holder. The operator shut down the server without permission. This is not a matter of infringement of property rights, but the operator has violated the service contract signed with the user. However, if the operator tampers with the currency, characters, pets, etc. in the user's game without permission, this is a problem for the user. Impair the exercise of property rights. Article 25 of the "Interim Measures for the Administration of Online Games" stipulates that when an operator discovers that a player user has released illegal information, it shall immediately stop the service. At this time, the service provided to the user is only stopped, and there is no right to tamper with and deduct the equipment and currency in the user's game.

 

Fourth, some scholars argue that if the network virtual property is regarded as the real right, when the operator decides to shut down the server and stop the game operation due to loss or technical problems, it means that all the data in the game will be deleted. For the users who are still playing games, the network virtual property is the object of the real right, and the operator will delete it and compensate the corresponding users, but the number of users is huge, it is impossible for the operator to make full compensation. The author believes that the equipment and facilities purchased by users with money have corresponding value. Operators should settle and return the remaining value of user accounts before deciding to close the game. This is fair and reasonable for operators and users.

 

Finally, the author believes that the network virtual property as the object of property rights is conducive to maintaining the fairness and equivalence of transactions between operators and users, is conducive to the establishment of a good network order, regulate the legal status of operators and users and their respective rights and obligations.

 

4. epilogue

 

The continuous progress of the network has led to the increasing number of Internet disputes and criminal cases. How to use legal means to solve the endless virtual property and other Internet disputes is an urgent problem to be solved and improved in our country's legislation. Regarding the nature of virtual property, the author still believes that the network virtual property rights as a special property right, from the "General Principles of Civil Law", "Property Law" and other legal systems to regulate and restrict it, can better interpret the attributes of virtual property, Solving many disputes and criminal cases surrounding virtual property is conducive to the healthy development of the Internet.

 

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