Author：Steve Zhao , Anbi Xu
I. Background: Two Landmark Game Cases and Why They Matter
In 2025 and 2024, Chinese appellate courts delivered two important rulings that have reset expectations about copyright protection for online game mechanics. The cases – commonly known as the “Infinite Borders: Three Kingdoms” case (Guangzhou IP Court, 2025) and the “Rise of Kingdoms” case (Guangdong High Court, 2024) – both involved popular strategy games and allegations that competitors had copied their gameplay rules. These lawsuits garnered significant attention in China's booming online gaming industry because the trial courts had experimented with a novel legal theory: treating game rules as protectable subject matter under Article 3(9) of China's Copyright Law, the so-called “other intellectual achievements” clause . The first-instance decisions were hailed by some as a potential breakthrough for game rule protection, suggesting a new path to copyright-like protection for game mechanics. However, on appeal both cases took a sharp turn – the higher courts overturned the experimental approach, firmly reaffirming that game rules are not copyrightable works. This one-two punch has major implications for game developers and publishers and clarifies how to protect game mechanics in future enforcement actions.
II. Lower Courts' Bold Experiment: Game Rules as “Other Intellectual Achievements”
Understanding the significance of these cases requires a look at what the trial courts attempted. In both Infinite Borders: Three Kingdoms and Rise of Kingdoms, the plaintiffs sought to protect the gameplay design and rules –the game's core mechanics – which traditionally fall outside copyright protection as “ideas” or systems. The vehicle for this claim was the new Article 3(9) of China's Copyright Law (effective 2021), which provides a catch-all category for “other intellectual achievements that meet the characteristics of works.” This clause was introduced to modernize China's closed list of protected works, allowing new types of creative expression not enumerated in the first eight categories of works to be recognized . The legislative history shows it was intended as a safety valve for emerging art forms in the digital age, aligning Chinese law with the Berne Convention's open-ended approach to protected works . Crucially, lawmakers emphasized two constraints: any new “intellectual achievement” must still meet the definition of a work (i.e. be an original expression) and should only be invoked if the creation cannot fit into existing work categories .
Despite these cautions, the lower courts in these two cases stretched Article 3(9) in unprecedented ways. In the Infinite Borders: Three Kingdoms case, the Guangzhou Internet Court (trial court) held that the entire game – including its rule system – qualified as an “other” work under Article 3(9), thereby treating the game's rules and design as a copyrightable work in itself . In the Rise of Kingdoms case, the Shenzhen Intermediate Court took a slightly different tack: it recognized the game's audiovisual elements (graphics, images, etc.) as a traditional audio-visual work, but additionally found that the game's underlying rules and mechanics (as presented through the game interface) constituted a separable “other intellectual achievement” deserving protection. This “dual categorization” theory posited that the same game could be protected in two ways – its visual/audio content under standard categories and its game rules under the new open clause.
These trial judgments were groundbreaking. For the first time, Chinese courts had opened the door to copyright protection for game play rules – something long thought unprotectable under the idea/expression dichotomy. The game industry viewed these first-instance wins as a milestone. In their view, the victories suggested a new legal tool to combat the rampant cloning of game mechanics in the market. By classifying game rule designs as a protected “intellectual achievement,” the courts seemed to offer a workaround to decades of judicial resistance to protecting game rules. Essentially, the trial courts attempted to “push the envelope” of copyright law to respond to industry needs, using Article 3(9) as a doctrinal lever.
III. Appellate Reversal: Reasserting Copyright's Boundaries
On appeal, however, both experiments were decisively curtailed. The Guangzhou Intellectual Property Court (in Infinite Borders: Three Kingdoms, August 2025) and the Guangdong High People's Court (in Rise of Kingdoms, late 2024) each overturned the lower courts' innovative use of Article 3(9). The appellate decisions unequivocally rejected the notion that game rules or play mechanics can be protected as works of authorship. In doing so, the higher courts issued opinions that realign the law with orthodox copyright principles and China's legislative framework:
1. Idea/Expression Dichotomy Reaffirmed
Both appellate rulings stressed that game rules, no matter how creative or complex, remain in the realm of uncopyrightable ideas, systems, or methods rather than protectable expression. In the Rise of Kingdoms appeal, the court reasoned that the game's features and their combination essentially constituted the game's gameplay design, which “by its nature is an idea, system, operational method or process” – even if it's detailed, ingenious and reflects great creativity, it is “not an expression in the copyright sense”. The Infinite Borders: Three Kingdoms appellate court echoed this, emphasizing that copyright protects only specific expressions of ideas, “not the ideas or rules themselves”, and that the rules and gameplay design at issue were essentially ideas or methods, not a form of expression eligible for copyright . This reasoning is squarely in line with international norms (Article 9(2) of TRIPS, for example, excludes ideas, procedures, and methods from copyright protection) and long-standing Chinese practice. By classifying game rules as ideas, the appeals firmly slammed the door on using copyright law to monopolize gameplay concepts.
2. No “New” Expression Form in Video Games:
The appellate courts further found that invoking Article 3(9) was unnecessary because video games did not present a new type of expressive form beyond existing categories. The courts observed that any given aspect of a game can be categorized under established work types – for instance, game software code is protected as computer software (a literary work), artwork and audiovisual elements as graphic or audio-visual works, text as literary works, etc. . Even the game's rules can be expressed in various traditional forms (e.g. written rulebooks, flowcharts, source code, dynamic on-screen images) and those expressions might be protected under those forms. As the Guangdong High Court noted, a video game is essentially a complex multimedia product comprising software, visuals, audio, etc., all of which fall into recognized categories. There is no new category of “game mechanics” expression that current law fails to cover. In the court's vivid words, the game at issue had not produced a new category beyond these known forms”, so the trial court's attempt to “look far afield” for protection under Article 3(9) was unwarranted. In short, the appellate judges signaled that Article 3(9) should not be used to re-label content that can be accommodated within existing work types.
3. Doctrinal and Systemic Consistency
Perhaps most importantly, the appeals highlighted that recognizing a brand-new category of copyrighted work has system-wide implications that must be carefully considered. Different work categories in copyright law often carry different rules – for example, in Chinese law, who qualifies as an author, the term of protection, and the standards for infringement (substantial similarity tests, etc.) can vary based on work type. The courts noted that declaring a new type of work under Article 3(9) essentially creates a new “absolute right” in that subject matter. Doing so in a single case, without legislative or systematic guidance, risks incoherence in the law's application. In both appeals, the judges faulted the lower courts for failing to undertake a “systematic coordination” analysis – meaning the trial courts did not address how treating game rules as a new work type would mesh with the Copyright Law's structure (e.g. what rights exactly would a “game rules” work confer? how to assess infringement of it? what is the term? who is the author when many contribute to game design? etc.) . The Guangzhou IP Court explicitly pointed out that the first-instance judgment had skipped this necessary systematic consideration, and so its direct leap to call the game an “other intellectual achievement” was inappropriate and had to be corrected. Underlying this is a philosophy of judicial restraint: such broad policy decisions, the appellate courts implied, should be left to the legislature, not made ad hoc by courts in individual cases.
By articulating these points, China's appellate courts signaled a “rational return” from what they saw as an overly aggressive trial-court exploration of the new clause. The end result in both cases was that copyright claims over game rules were denied. In the Infinite Borders: Three Kingdoms case, the first-instance ruling was vacated and remanded (effectively erasing the finding that the game as a whole was an “other work”). In the Rise of Kingdoms case, the appellate court likewise reversed the lower court's theory of dual protection and confirmed that gameplay rules are not copyrightable subject matter.
IV. AUCL as a Backstop Against Game Cloning
It is worth noting that, although the copyright path failed, plaintiffs still have a viable backstop under China's Anti-Unfair Competition Law (AUCL) to curb brazen cloning. In a comparable 2024 judgment, the Guangzhou IP Court held that replicating a game's overall rule-system and merely “re-skinning” the visuals can, in appropriate circumstances, amount to unfair competition even where copyright does not reach. The appellate courts in Rise of Kingdoms and Infinite Borders: Three Kingdoms sent a paired message: copyright will not stretch to protect game concepts, but the naked appropriation of a rival's gameplay design may be disciplined as conduct contrary to business ethics under the AUCL.
That said, this is a narrower, fact-intensive route. In Infinite Borders: Three Kingdoms, the appellate court stressed a structured, holistic comparison, not cherry-picked fragments: courts should test (i) whether the alleged cloned rules are substantially similar in the corresponding parts of the two games; (ii) the proportion those rules occupy in the complete ruleset; (iii) their position within the game's overall architecture; (iv) their functional role and contribution to the gameplay loop; and (v) their effect on player decision-making and market choice. Only where that analysis shows bad-faith misappropriation and competitive harm will AUCL relief be available. The headline remains: copyright protects expressive implementations (code, art, audio, narrative), not abstract rule systems.
V. Why the Gaming Industry Tested the Clause – And Why It Failed
An intriguing aspect of these developments is that only the video game industry attempted to use Article 3(9) in this bold way. Since the clause came into effect in 2021, among the thousands of copyright cases each year across literature, art, music, film, etc., it was exclusively game companies that tried to push the boundaries by classifying their creations as “other intellectual achievements” . Both the Infinite Borders: Three Kingdoms and Rise of Kingdoms trial judgments in mid-2023 were essentially pioneering tests, and no other sector followed suit . Why gaming? The answer lies in a mix of acute need and unique capability in the game industry:
1. The Need – Protecting Game Mechanics
Game developers have long faced a protection gap: the innovative rule systems and interactive gameplay that make a game fun are extremely valuable, yet under the traditional idea/expression dichotomy these are deemed unprotectable “ideas.” A cleverly designed gameplay system can require years of R&D and millions in investment, only to see imitators copy the rule set with impunity (merely swapping out artwork) . This creates a fundamental mismatch between creative value and legal protection in the gaming sector . Earlier judicial approaches in China left game studios frustrated – courts would protect the game's graphic or music assets, but not the rules that actually drive player engagement . This meant that a competitor could reproduce the same gameplay experience by copying the rules and mechanics while avoiding literal copying of artwork or code. The inability of copyright law to protect that core “idea” of a game has been a pain point for two decades in China (as seen in cases from the 2006 “QQ Tang” case through the 2014 “Hearthstone” case and many others, where courts consistently held specific game rules or play methods are ideas and thus not protected ). As the industry grew, so did the urgency to find a legal tool to safeguard game design innovation. Article 3(9) appeared at the right time – an open-ended category in the new law, seemingly offering a chance to “break through” the idea/expression wall. This backdrop explains why game companies were motivated to be the first (and so far, only) ones to seize upon the new clause as a possible solution .
2. The Capability – Resources to Litigate and Innovate
China's gaming industry is not only massive (over RMB 300 billion in revenue in 2024) but also dominated by a few well-funded, sophisticated players . Leading game companies – such as the parties behind Infinite Borders: Three Kingdoms (NetEase) and Rise of Kingdoms (Lilith) – have deep pockets and top legal teams. They also have strong incentives to protect their flagship games' competitive edge. This combination of “high incentive and high ability” made them willing to act as legal trailblazers . Pursuing novel legal theories is costly and uncertain: it requires hiring expert counsel, enduring long appeals, and even sponsoring academic research to support one's case. The major game firms were uniquely positioned to take on that burden as an investment in shaping favorable law. In contrast, other emerging fields that could theoretically benefit from Article 3(9) (such as AI-generated content, NFT digital art, or metaverse creations) have been far more cautious, likely because their commercial stakes have been lower or the legal questions (e.g. who is the author of AI content?) were even more unsettled . Game companies essentially became the test pilots for this new clause, driven by the acute need to protect game mechanics and the means to attempt legal innovation.
Why did the experiment ultimately fail? In a sentence: the appellate courts sought to balance the legitimate interests of first movers with the need to keep the market dynamic for follow-on, improvement-driven competition. The games industry's impulse to sidestep the idea/expression dichotomy to protect gameplay design is understandable. But the courts have now made clear that Article 3(9) is not a backdoor to protect “ideas” that copyright deliberately leaves in the public domain. The open-ended clause is aimed at recognizing genuinely new forms of expression, not at monopolizing the content of ideas. Reclassifying gameplay rules as an “other work” would, in substance, grant an expansive and long-lasting exclusive right over a gameplay concept or system—departing from core copyright principles and chilling later entrants who innovate by lawful imitation and iteration. By correcting course, the appellate decisions preserve the idea/expression boundary, keep Article 3(9) in step with the statute's overall architecture, and leave room for iterative innovation while protecting concrete expressive implementations only.
In sum, the gaming industry's leadership in testing Article 3(9) was driven by necessity and ambition, but the experiment was curtailed by the enduring logic of copyright law. The message from the higher courts is that Chinese copyright law will not “stretch” to cover game mechanics under the current statute, and any expansion of rights in that direction must come (if at all) from deliberate legislative action, not creative judicial interpretation.
VI. Implications for Game Developers, Platforms, and Publishers in China
These appellate decisions carry clear practical implications for stakeholders in China's gaming sector and beyond:
1. Game Developers & Publishers
For companies developing games, the rulings underscore that core gameplay ideas and rule systems remain unprotected by copyright. In practice, this means that if a competitor copies your game's underlying mechanics but uses their own art, code, and story, you cannot claim copyright infringement based on the rules or game design alone. Attempts to rely on the “other intellectual achievements” clause to protect those aspects are now unlikely to succeed in court.
Developers and publishers must therefore adapt their IP protection strategies. This includes emphasizing protection of what is copyrightable in a game – the artwork, characters, narrative elements, software code, sound and music, etc. – through registrations and enforcement as traditional works. It also means being realistic that innovative gameplay may be legally imitated by others, which shifts the competitive focus to speed of innovation, continual improvement, and brand loyalty. In contracts and partnerships, game companies might seek to include clauses that contractually restrict cloning of game mechanics (though enforceability can be tricky). Furthermore, other areas of IP law might be leveraged: for instance, if a truly novel technical gameplay mechanism has a functional aspect, consider patent protection (though game rules per se often don't meet patentable subject matter criteria).
Critically, when faced with a copycat game that replicates unique gameplay, developers should assess unfair competition law avenues. As Chinese courts hinted, if the copying is so extensive that the rival game is essentially a “skin” of the original, a claim under the Anti-Unfair Competition Law (e.g. for slavishly imitating a product with competitive influence) might succeed. However, this requires strong evidence of bad faith copying and market harm – a high bar – and is decided case-by-case. Ultimately, in-house counsel for game firms must advise their teams that copyright is not a panacea for game cloning: exclusive rights reside in the expressive implementation, not the game concept.
2. Online Platforms and App Stores
For game distribution platforms (mobile app stores, PC game platforms, etc.), these rulings provide clarity on how to handle takedown demands. Platforms often receive complaints from game companies that a rival game is a “clone” of their gameplay. After Infinite Borders: Three Kingdoms and Rise of Kingdoms, platforms can be more confident that “copying my game's rules” alone is not a valid copyright complaint under Chinese law. Unless the complaint points to copying of specific expressive elements (art assets, code, text, characters, etc.), pure gameplay similarity should not trigger a copyright takedown. This might relieve some pressure on platforms to police look-alike games purely on gameplay.
That said, platforms should still take note if a court has determined a particular clone constitutes unfair competition – in such cases, even absent a copyright basis, an order to remove or adjust the offending game could follow. Going forward, app store review policies in China may explicitly reflect that gameplay concepts are not protected IP in themselves, to manage developer expectations. Platforms must continue to handle trademark or brand confusion issues (e.g. clones mimicking a game's name or logo) and patent disputes separately, but on the copyright front these cases draw a bright line around game mechanics as free to emulate. In-house counsel for platforms should update their IP enforcement guidelines accordingly, and be prepared to explain to content owners that Chinese copyright law does not extend to game rule imitation – urging them to substantiate takedown requests with specific copyrighted content if available.
3. The Wider Industry (Including Foreign Publishers in China)
Both domestic and foreign game publishers operating in the Chinese market should heed this clarification. Some foreign companies might have assumed that China's new open-ended work category could offer broader protection than Western laws – but the courts have signaled the opposite: Chinese law remains aligned with global norms in refusing idea protection. Western in-house counsel advising on Chinese game launches or licensing should not expect any extra “copyright shield” for gameplay beyond what they'd have elsewhere. Instead, they should focus on localizing their protection strategy: utilize China's copyright registration (for game art, code, etc.), secure trademarks for game titles and key character names in China, and consider technical measures or server-side control to guard unique content.
If a clone does appear in China, be aware that a copyright lawsuit will only prevail if substantial expressive elements were copied. Otherwise, the recourse might be an unfair competition claim – which involves a different litigation strategy, often requiring evidence of how the clone causes market confusion or passes off unfairly. Foreign publishers should work with local counsel to navigate these nuances. Additionally, these cases might influence investment and partnership decisions: when evaluating Chinese game studios or IP, the inability to monopolize gameplay ideas via IP law should factor into valuations and risk assessments. The bottom line is a more level playing field for game mechanics – which is good for competition, but means game companies cannot rely on law to fend off competitors who iterate on their gameplay models.
VII. Future Outlook: The Role and Limits of the “Other Intellectual Achievements” Clause
The rise and fall of game-rule copyright in these cases also provides a window into how Article 3(9) will likely function going forward, especially from a judicial perspective. The “other intellectual achievements” clause remains an important part of China's Copyright Law, but its role is a cautious, forward-looking one – not a routinely invoked provision. The recent appellate opinions suggest a few key points about the clause's future:
1. A Reserved Space for True New Forms:
Article 3(9)'s value is largely in its existence as a safety net for the future, rather than in frequent application in court . The clause ensures the law has flexibility to accommodate technological or artistic innovations that introduce fundamentally new forms of expression. The legislators envisioned scenarios like, for example, creative outputs from brain-computer interfaces, holographic 3D art, or quantum computing-generated media – things that might not squarely fit any of the eight traditional work categories. If and when such revolutionary forms emerge, Article 3(9) is the doctrinal doorway to grant them protection without waiting years for a law amendment. In the present cases, the courts implicitly decided that video games (and their rules) were not such a new form, but the clause remains on standby for future developments that truly expand the boundaries of human creative expression.
2. Judicial Prudence and Limits
Chinese courts have now been explicit: judges must apply Article 3(9) with extreme caution in individual cases. In Infinite Borders: Three Kingdoms, the Guangzhou IP Court suggested that, had the trial court fully undertaken a “systemic coordination” analysis, there might have been theoretical room to discuss Article 3(9)—but it immediately emphasized that questions such as the scope of rights, ownership, term, and limitations are matters of legislative policy, not issues a single case can coherently resolve.
This does not foreclose all case-by-case exploration. Rather, it sets a high pleading and proof burden. If a plaintiff seeks to invoke the “other intellectual achievements” clause in civil litigation, two showings are required: (i) the work involves a genuinely new mode of expression; and (ii) the plaintiff tenders a generalizable, system-ready framework for the proposed category—sufficient for courts to administer it beyond a single dispute. At minimum, that framework should specify: (i) rights content and boundaries; (ii) Ownership rules, including joint authorship and legal-person works; (iii) term of protection and accrual; (iv)limitations and exceptions (e.g., fair use/compulsory licenses) and their standards; and (v) Infringement methodology, with a workable substantial-similarity test and burden-of-proof allocation.
Only after such a framework is presented and validated against social consensus, system-level coherence, and international obligations should a court consider recognition; absent that, claims under Article 3(9) should ordinarily fail.  In practical terms, expect courts to exhaust the eight enumerated work types first (stretching them where appropriate) and treat Article 3(9) as a true last resort.
3. Legislative and Industry Dialogue
The resolution of these cases points to the idea that any substantial expansion of protectable subject matter will likely come through legislation or SPC judicial policy, not case law. The game rule saga may spur further industry and academic discussion in China about how to protect valuable but non-traditional elements of creativity. For example, if protecting game mechanics is seen as important for incentivizing innovation, the solution might lie in amending the law or issuing judicial interpretations, potentially via unfair competition law or sui generis rights, rather than distorting copyright doctrine. The NPC Standing Committee could eventually clarify Article 3(9)'s scope or add specific new categories (much like some jurisdictions have database rights or design rights).
In the meantime, the IP community is encouraged to continue research on emerging forms (AI works, etc.) to help inform future updates . The courts will remain in a reactive posture: open but cautious. They will likely look for “social consensus, system coherence, and international alignment” as benchmarks before accepting any novel subject matter as a protected work . For now, the limits of judicial application of Article 3(9) have been clearly drawn: it is not a backdoor to protect what the law deliberately excludes, and it must be wielded, if at all, in a manner consistent with the overall legal system.
VIII. Conclusion
The Infinite Borders: Three Kingdoms and Rise of Kingdoms appellate decisions mark a pivotal clarification in Chinese copyright jurisprudence. They demonstrate that while China's newly revised Copyright Law embraces openness to new creative paradigms, it does so without abandoning fundamental principles. Game companies learned that lesson the hard way – through ambitious litigation that ultimately reinforced the classic idea/expression divide.
For practitioners, these cases provide a valuable update: Article 3(9) is not a catch-all weapon for every innovative idea, especially when that idea is better seen as a method or system. Instead, its promise lies in being ready for truly novel expressive mediums that the future may bring, and even then, to be implemented with careful thought.
In-house counsel in the gaming industry and similar fields can draw both comfort and caution from these rulings. Comfort because the law remains predictable and aligned with international norms—competitors cannot conjure broad new IP rights from abstract concepts, and lawful ‘imitation-plus' (building on general ideas while adding genuine innovation) remains a viable, court-respected strategy. At the same time, caution because protecting the fruits of innovation, such as novel gameplay mechanics, still depends on non-copyright tools and a smart IP portfolio design.：
double-down on protectable _expression (code, art, audio, narrative) and timely registrations;
consider patents where mechanics have technical character;
use contractual/technical controls in publishing and platform deals; and
when faced with a “re-skin” or systematic cloning of overall gameplay, be prepared to proceed under the Anti-Unfair Competition Law, backed by evidence of holistic, substantial similarity and market effects.
Going forward, the balance struck by Chinese courts is a prudent one: encourage innovation, but maintain legal stability. The “other intellectual achievements” clause ensures the law can grow, but the Infinite Borders: Three Kingdoms and Rise of Kingdoms saga reminds us that growth will be measured, principled, and in step with the broader copyright system . For Western counsel observing China's IP evolution, these developments illustrate a maturing system that values both adaptability and doctrinal consistency – a useful insight as we navigate the complex game of protecting creativity in the digital era.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
