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. [1] 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 Early Days 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 [continua..]