Cognitive efficiency in cases about nonliteral copying of game mechanics: lessons from Chinese practice

Chinese courts follow a dual-track approach in cases about nonliteral copying of game mechanics. The courts grant market exclusivity to game developers either under copyright law or under unfair competition law. In recent years, the fact that copyright law and unfair competition law differ in their cognitive efficiency has become clear. Copyright law is cognitively highly efficient. It is able to provide high-quality background information to navigate decision-makers through the complex issues. Unfair competition law, on the other hand, is cognitively inefficient, providing hardly any structural guidance to strike the delicate balance between creators and users of disputed game mechanics. Abundant cases in China help us understand the importance of cognitive efficiency in choosing the proper modularity of law. When it comes to game mechanics, copyright law is the better modularity in comparison to unfair competition law.