A Proper Test to Determine Copyright Infringement Related to Computer Games
Seung Soo Choi, Partner, Jipyong LLC/ Adjunct Professor, Chungang University Law School in South Korea.
Compared to the first video game introduced 50 years ago, the current graphics technology has made impressive progress and the computing ability for game operation or use has grown to an unmatched extent. The development environment is also very easy because it is easy to access development tools, and the video game industry has grown significantly through the activation of numerous platforms, including mobile. This development contributed to the mass production of many original games in the field of mobile games, but the game cloning spreads proportionally. Considering the development of game development technology and the spread of replicated games, the application of the existing paradigm to judge copyright infringement such as idea expression dichotomy or integration theory does not fit the new technology environment. With the existing paradigm for copyright infringement, most similar/mimicry games can avoid responsibility for copyright infringement, and this trend in court rulings worsens and causes large-scale game duplication in video game development, ultimately hindering the true creative will of game developers. It seems that there is a tendency in Korea to expand the application of Article 2 of the UCPA as an attempt to overcome the limitations of existing judgment standards for copyright infringement. However, the UCPA is a type of competition law that should be within the minimum range agreed by society in the free market economy. The modern transformation of copyright infringement theory can be considered to solve the spread of replicated games or imitation games in the field of game copyright. For example, the merger theory and scene a faire are often used to deny copyright infringement, but if a significant level of technological progress is achieved, the criteria for judging game copyright infringement should move toward limiting the scope of application of the merger theory. Therefore, it is necessary to try to establish the scope of copyright protection through in-depth consideration rather than avoiding through general provisions such as Article 2 of the UCPA. The Korean Supreme Court in Candy Crush saga case seems to suggest a new and proper standard in that it should be considered not only the creativity of each of the components of the game in relation to the judgment of the copyright of the game work, but also consider whether the components have reached the extent of protection as the work with creative personality distinguished from other games itself as they are selected, arranged and combined in the process of technically realizing according to the predetermined production intention and scenario.
1. Current Status of Video Game Industry and Cloning Issue
Today, video games have considerable economic and cultural influence. Its revenue has long exceeded those of movies and music, the traditional entertainment sectors. Halo Series 5, Microsoft’s console game raised the revenue of USD 40 million within 24 hours of its release, exceeding that of any Hollywood blockbuster movies.  Well-known game publishers place game ads at enormous expense during the Super Bowl in the US. The web site Twitch allows the gamers to record their own game and use such video footages to provide streaming services to its 50 million members, and the popularity of famous pro gamers in eSports is second only to David Beckham.
The average age of game players in the US is 35, and 42% of the video game players spend an average of 3 hours a week on the game. In 2015, the worldwide revenue of the video game industry reached USD 91 billion. The US and China accounted for USD 44 among such a figure. In 2016, 80% (144 million) of the smart phone users in the US played games with their smart phones. Considerable number of mobile games can be downloaded free of charge, however, the game publishers make enormous profit through micro transactions, where the players purchase items, etc. for the game within the application. This is so-called the freemium business model. It is being established as a model through which a colossal amount of revenue can be raised from the tremendous number of smart phone users. In 2014, the mobile game industry alone realized revenue of USD 1 billion, featuring exponential growth by games such as Candy Crush Saga, Clash of Clans, and Puzzle & Dragons.
Cloned video games are lining up to join the bandwagon for opportunities to make money. A well-known example may be the unprecedented success of Angry Birds as an arcade game as well as in the mobile platform, which were followed by the release of such games in the app stores as Angry Rhino: Rampage!, Angry Alien, and Angry Pig. Recently, there is no end to copyright infringement disputes even in Korea, not to mention the dispute involving game plagiarism between ‘Friends Pop’, a famous mobile puzzle game, and ‘Friends Popcorn’ recently released by Kakao.
We will hereinafter review the theories and precedents in the US and Korea with respect to the criteria for judgment on copyright infringement in video games, and how the application of the copyright law must change to accommodate the new game environment.
2. Historical Developments in Video Game Copyright
The origin of commercialization of video games was the arcade game, which was a by-product of the experimental attempts by academic researchers, and was followed by numerous household console games and arcade machines. Pong game was followed by countless imitations, and we witnessed a swift growth which came to be known as the golden age of arcade games. From the end of the 1970s until the mid-1980s, the courts in the US began to issue judgments on copyright infringement issues related to video games, and at first, it was decided that video games, which were a new type of copyright work, were copyrightable. The main issues discussed included how to classify the video game (whether as software or as cinematographic work), what conditions of fixation to apply to the interactive environment and the ever changing screen, and in which elements of the game the copyright shall be acknowledged.
Age of Consoles
This is the period from the end of the 1980s until the early days of the 2000s. This era witnessed innovative developments in video game consoles and hardware, which resulted in expansion of the game industry, but the fierce legal battle involving game cloning or idea-expression dichotomy were yet to unfold.
Age of Multi-Platforms
This refers to the present era which began in the early 2000s. With diversification of game platforms, now it is possible to play games on various platforms such as household consoles, PC, and mobile devices. Especially, mobile and web-based video games emerged as a new type of video games. The main legal issues in copyright infringement lawsuits nowadays include issues involving substantial similarity in video games, ownership issues with respect to works created by users with in-game tools, legitimacy of digital market places in games, and freedom of expression in video game content.  The changes in the technical environment for game development and the structural changes in the game industry induced development of the copyright law with regard to games. In the early days, the video games were recognized as falling ..