Analysis of Video Game Copyright Law in US vs. China
I’ve recently had the pleasure of working on a research paper for my International IP class. I chose the topic of video game reskinning in China and its effect on the market. Since it is such a long paper, I’ll be splitting it up into different parts!
Here’s the first part about a background of US and China copyright law when it comes to video games.
Background of Copyright Law
US Copyright Law
When it comes to copyright law, video games are a difficult work to protect because there are so many different elements of a video game. Copyright law in the United States does not protect the game’s name, methods of playing, idea, device, or trademark involved in developing, merchandising, or playing the game.[1] However, if there are enough literary or pictorial elements, those could be copyrighted separately.[2] Video games include many different types of art forms such as music, scripts, story plots, videos, paintings, characters etc.[3] Generally, the protectable elements of video games are thought to include the following: (1) Audio elements — musical compositions, sound recordings, voice, imported and exported sound effects; (2) Video elements — photographic images, digitally captures moving images, animation, text; (3) Computer code — primary game engines, ancillary code, plug-ins and comments.[4] These are generally summarized as audiovisual works and computer code, but another complication arises as to how to categorize the entire video game.[5] Some experts suggest that it should be a multimedia work, while others suggest it is an audiovisual work, or even a computer program.[6]
The United States looks at video games on a case by case basis to determine what classification they should be considered under, and in the judicial system has a significant number of cases.[7] The courts have attempted to clarify through its case law what is an idea, and what is an expression of that idea.[8] How the game is classified and registered makes a large difference as to whether or not what the plaintiff is seeking to protect is just an idea or an expression. One of the first few cases involving video games was Atari, Inc. v. Amusement World, and the court ruled here the video game should be considered an idea even though Atari registered the video game as an audiovisual work.[9] The games at question were Atari’s Asteroids, one of the more popular 8-bit original games, and Amusement World’s Meteors.[10] Both games allow the player to command “a spaceship through a barrage of space rocks and enemy spaceships.”[11] “[W]hat the plaintiff sought to protect was not the computer program but the visual presentation of the game” and hence the courts agreed that Atari could register its video game as an audiovisual work.[12] However, the court did not rule in favor of Atari because even though the games were similar, the similarities were just of the plaintiff’s ideas, and hence the court had to make the clear distinction that similarities of ideas were not protectable.[13] This case is a bit puzzling because the court identified twenty-two similarities and only nine differences, but because of how the court applied the merger doctrine and scène à faire, the court did not grant Atari protection.[14] The merger doctrine states that if an idea is inseparable from its expression, or there are limited ways of expression, the expression is thus not protectable.[15] Scène à faire states that if the similarities are a form of expression in which any basic version of that idea could not avoid having, they should be excluded from the analysis of copyright infringement.[16] Given those doctrines in mind, the court’s ruling makes more sense even though those similarities existed.
However, in Atari v. North American Philips Consumer Electronics Corp., the court favored Atari in that while the idea of a game cannot be protected, if the work adds something new or additional to the idea, it can still be protected.[17] The court still found the result that defendant infringed upon Atari’s copyright despite the games having a substantial number of differences.[18] There was a substantial part of the game that was lifted, and copiers cannot succeed to prove they did not infringe by stating that they did not copy a large portion.[19]
For elements that are not protectable under copyright, video games can be protected with trade secrets, patents, and trademarks.[20] Thus, US copyright law is more flexible in addressing how to protect video games. Instead of classifying video games under one umbrella, the courts seek to separate out the elements and address each case separately, with references to a multitude of prior history and judgments. The courts now apply the abstraction-filtration-comparison test when determining the similarity between two games; first, the courts identify the level of abstraction, then they filter what can be protected under copyright and what cannot, and finally the courts will then compare the copyrightable material for infringement.[21] With a test like this, copyright law is much more thoroughly analyzed when it comes to video games.
China Copyright Law
Chinese copyright law is quite the opposite. There is much less precedent, and China also does not have a specific category for video games.[22] China does have protection under copyright for software programs, and the closest reference to video games is that of online games.[23] Computer software is broadly defined as including all types of computer programs and related documentation, and this could include any kind of code-based instructions that can be run by devices with information processing capacity.[24]
China’s copyright law is hence quite weak as compared to US law, and the Chinese Supreme Courts have even suggested “competition law would offer more protection than copyright law.”[25] Chinese courts have taken two methods of protecting video games; either the video game is protected separately under each element or “regarded as a work created by a process analogous to cinematography, which protect the continuous dynamic images.”[26] The first case heard in Chinese courts about video games was in 2007 between Nexon Holdings and Tencent. The games at dispute were Nexon’s Pop Tag and Tencent’s QQ Tang.[27]
Nexon stated that there were thirty-seven similarities between the games in content, gameplay, and design.[28] The Chinese court first looked at whether defendant had access to plaintiff’s code, and indeed, Nexon had released a public beta in 2003, and Tencent published their game in 2004.[29] The court does not think this information is enough to prove infringement since Nexon could not prove that these similarities existed before the game was published.[30] For those stated similarities, nine of them were in the login interface and is classified as general expression which is not protectable, seven of them were deemed an idea such as the design of the woods, the aircraft etc., and the remaining twenty-one were in-game props but the names were too short and could not meet the originality requirement.[31] This case helped to establish that Chinese courts would look at copyright infringement under an “access + substantial similarity” lens to determine infringement.[32] This also helped to show that the courts would take a strict look at the originality of each element to determine infringement.[33]
Another instrumental case in China’s precedent of copyright infringement in the video game industry is Taiji Panda v. Hua Qian Gu in 2018.[34] Plaintiff asserts that defendant just took their mobile game and only slightly changed the appearance of the characters, but the “décor, the core elements, and the gameplay” is the same, and thus this should be recognized as reskinning..[35] In terms of the access argument, plaintiff was able to demonstrate that they did launch their game earlier and actually, in the design documents in defendant’s game, there were screenshots of plaintiff’s game as reference.[36] The defendant argues in the expected manner that copyright law cannot protect “the structure[…], the functional layout of the interface, the gameplay and game value ratio.”[37] The game interface is functional, gameplay is too abstract, and in-game dialogue and text are in the public domain and cannot be protected either, but the court reaches an entirely different conclusion.[38] Drawing from precedent, the Su Zhou Intermediate People’s Court ruled that Taiji Panda should only be protected by a process that is similar to protecting works of cinematography, or films.[39] The argument that it should not be computer software is because while the game is made of computer code, players do not see the game as the code, but rather through the device of operation they see the game.[40] Hence, video games should be viewed as presentation and as a whole, and they can be analogized to works of film.[41]
This distinction proves problematic since works of film have a much higher level of originality to meet protectability.[42] The court shows that Taiji Panda has a set of storylines and players control the continuous dynamic images on the screen and hence this makes it a work similar to film, and eliminated many elements that were deemed to be too low in originality or are considered functional.[43] The court found that there was a specific game hierarchy that plaintiff created that includes the gameplay and game rules, and that this was protectable so that the defendant still infringed.[44] This opinion and reasoning is still vague and unclear, but has a very high standard of originality since each image would need to be considered original and copyrightable for this to be protected as a whole.
[1] Library of Congress, Games, Apr. 2016.
[2] Id.
[3] Andy Ramos et. al., The Legal Status of Video Games: Comparative Analysis in National Approaches, WIPO, July 29, 2013, at 7, https://www.wipo.int/export/sites/www/copyright/en/activities/pdf/comparative_analysis_on_video_games.pdf.
[4] Id. at 8.
[5] Id. at 10.
[6] Id.
[7] Id. at 89–90.
[8] Id. at 90.
[9] Andy Ramos et. al., The Legal Status of Video Games: Comparative Analysis in National Approaches, WIPO, July 29, 2013, at 90, https://www.wipo.int/export/sites/www/copyright/en/activities/pdf/comparative_analysis_on_video_games.pdf.
[10] Zihao Li, The Copyright Protection of Video Games from Reskinning in China — A Comparative Study on UK, US, and China Approaches, 11 Tsinghua China L. Rev. 293, 310 (2019).
[11] Andy Ramos et. al., The Legal Status of Video Games: Comparative Analysis in National Approaches, WIPO, July 29, 2013, at 90, https://www.wipo.int/export/sites/www/copyright/en/activities/pdf/comparative_analysis_on_video_games.pdf.
[12] Id.
[13] Id.
[14] Zihao Li, The Copyright Protection of Video Games from Reskinning in China — A Comparative Study on UK, US, and China Approaches, 11 Tsinghua China L. Rev. 293, 310 (2019).
[15] Id.
[16] Id. at 310–311.
[17] Andy Ramos et. al., The Legal Status of Video Games: Comparative Analysis in National Approaches, WIPO, July 29, 2013, at 90, https://www.wipo.int/export/sites/www/copyright/en/activities/pdf/comparative_analysis_on_video_games.pdf.
[18] Id.
[19] Id.
[20] Id. at 91.
[21] Zihao Li, The Copyright Protection of Video Games from Reskinning in China — A Comparative Study on UK, US, and China Approaches, 11 Tsinghua China L. Rev. 293, 314 (2019).
[22] Andy Ramos et. al., The Legal Status of Video Games: Comparative Analysis in National Approaches, WIPO, July 29, 2013, at 28, https://www.wipo.int/export/sites/www/copyright/en/activities/pdf/comparative_analysis_on_video_games.pdf.
[23] Id.
[24] Id.
[25] Zihao Li, The Copyright Protection of Video Games from Reskinning in China — A Comparative Study on UK, US, and China Approaches, 11 Tsinghua China L. Rev. 293, 323 (2019).
[26] Id. at 324.
[27] Id.
[28] Id. at 324–5.
[29] Id. at 325
[30] Id.
[31] Id.
[32] Zihao Li, The Copyright Protection of Video Games from Reskinning in China — A Comparative Study on UK, US, and China Approaches, 11 Tsinghua China L. Rev. 293, 326 (2019).
[33] Id.
[34] Id.
[35] Id.
[36] Id. at 327
[37] Id.
[38] Zihao Li, The Copyright Protection of Video Games from Reskinning in China — A Comparative Study on UK, US, and China Approaches, 11 Tsinghua China L. Rev. 293, 327 (2019).
[39] Id. at 328.
[40] Id.
[41] Id.
[42] Id. at 329.
[43] Id.
[44] Id. at 330.
