The Copyright Protection of Video Games from Reskinning in China-A Comparative Study on UK, US, and China

• Author: Li Zihao
• Pages: 295-340

2019] COPYRIGHT PROTECTION O F VIDEO GAMES 295

THE COPYRIGHT PROTECTION OF VIDEO GAMES FROM

RESKINNING IN CHINA—A COMPARATIVE STUDY ON

UK, US AND CHINA APPROACHES

LI Zihao

Abstract

Video games are becoming a popular form of entertainment, as well as an important part of the

Internet industry. With the adva ncement of computing and graphics techno logies, video games

are now defined by various elements, which are the intellectual ach ievements of the designers.

However, the prosperity of video games also creates a breeding ground for copyright

infringements. Reskinning, a s one of the popular cloning methods, has gravely harmed the

interests of game d esigners. Being the largest video ga ming market in the world, China has to

deal with these issues properly to ensure healthy and sustainable development of its video games

industry. In order to examine copyright protec tion of video games from reskinn ing in China,

this article firstly introduced gen res of video games, the current legal protection mechanisms

and th e subject matter of video games to dem onstrate the status quo of video game and its

regulation. Then the article compared the current c opyright protection of video g ames among

the US, the UK and China and analysed each lega l approach for the purpose o f exploring

possible approaches to improve copyright pro tection of video games from reskinning in China.

Finally, the article proposed three suggestions for Chinese copyright law from the subject

matters of copyright protection, asse ssment criteria and industry-based self-regulation parts.

I. INTRODUCTION

With the emergence of the Internet technologies, video games1 has

quickly become one of the most popular entertainment choices. Since

the launch of the first mainstream video game – Spacewar! – in the

US, digital games have become a worldwide industry. The global

market for video games is expected to continue on its fast expansion

in the future.2 However, throughout the history of digital game design

and progress, there have been imitations and copies of other games.

This continues to be a considerable issue in this sector. Game

innovation is inseparable from imitation and sharing of ideas,3 but as

a type of creative work, legislation should draw a line between

legitimate inspiration and plagiarism, to serve the developers’

1 The video game i s normally defined as a n electronic game that contains interaction with u sers to

generate audio-visual feedback on a two- or thr ee-dimensional display device such as a screen, virtual

reality headset or computer. The video game is constituted by various elements such a s gameplay, game

roles, game rules, storylines, in-game dial ogue and background music.

2 F. Willem G rosheide et al., Intellectual Property Protection for Video Games: A View fro m the

European Union, 9 J. INT’L COM. L. & TECH. 1, 2 (2014 ).

3 The famous ga me Counter-Strike has been remixed an d redeveloped, becoming one of the most

popular game models.

296 TSINGHUA CHINA LAW REVIEW [Vol. 11:293

interests. Thus, the legal framework for protection of video games is

increasingly vital.

For China, which is the second largest video game consumer in the

world, 4 the protection of video games is particularly essential.

According to the 2017 China Game Industry Report, the actual sales

revenue of the Chinese digital game market reached RMB203.61

billion in 2017, representing a year-on-year increase of 23%.5 Mobile

games account for 96% of all domestic games. China has become the

largest video gaming market and the third largest mobile gaming

market in the world.6

However, with the rapid development of the video game market,

the infringement upon video game intellectual property rights is also

in an alarming increase. The 2016 Investigation Report on

Infringement of Intellectual Property Rights in Online Games shows

that, in 2015 and 2016, the total number of online game infringement-

related court cases reached 254, which is eight times year-on-year.7

According to the report, the distribution of the cause of action of most

of the cases were copyright infringements, mainly related to networks

and online game imitation.

A. The Development of Mobile Games in the Game Industry

The swift progress of video games has led to the development of

mobile games. The mobile game is defined as a type of video game

that players use smartphones and tablets to play.8 While this new

4 Zhongguo Hulianwang Xinxi Zhongxin ( 中国互联网信息中心) [China Internet Information

Center], Di-sishi Ci “Zhongguo Hulianwang Fazhan Zhuangkuang Tongji Baogao” (第40次《 中国互联

网络发展状况统计报告》) [The 40th “Stat istical Report on the Internet Development in China”] (Jul y,

2017), http://www.cac.gov.cn/files/pdf/cnnic/40cnnic.pdf.

5 Zhongguo Yinshuxie Y ouyi Gongwei ( 中国音数协游戏工委) [China Ga me Publishing

Committee] et al., 2017 Nia n Zhongguo Youxi Chanye Baogao (Zhaiyao ban) (2017年中国游戏产业报

告 (摘要版)) [2017 China Gaming Industry R eport (Abstract)] (Dec., 2017), http://www.cgigc.com.cn/

member/upload/pms/201712/19115519 j09s.docx.

6 Leading Mobile Gaming Markets Worldwide Based on Share of Mobile Game Sessions as of April

2017, STATISTA (Jan.7, 2019), https:// www.statista.com/statistics/722240/global-leading-markets-

mobile-game-session-share.

7 Beijing Shi Haidian Qu Renmin Fayuan ( 北京市海淀区人民法院) [Beijing Haidia n District

People’s Court], Wangluo Youyi Qinfan Zhishi Chanquan Anjian Dia oyan Baogao (网络游戏侵犯知识

产权案件调研报告) [Investigati on Report on Cases a bout Infringement of Intellectual Property Rights

in Online Games] (June 2017), http://www.netmvp. cn/uploadfile/file/20161202/20161202_a4816620.pd

f.

8 TIM FIELDS, DISTRIBUTED GAME DEVELOPMENT: HARNESSING GLOBAL TALENT TO CREATE

WINNING GAMES (Focal Press, 2012).

2019] COPYRIGHT PROTECTION O F VIDEO GAMES 297

industry is growing rapidly, it is also regarded as a highly controversial

sector because o f the low market access requirements and rapid rate

of return.9 The mobile game industry is disruptive and is the largest

and fastest-growing area of interactive entertainment.10 According to

the 2017 China Game Industry Report11, the number of mobile game

players in China reached RMB460 million in 2017. The revenue of

mobile games in 2017 was RMB112.21 billion, representing an

increase of 38.5% over the same period of the previous year. Mobile

games account for 55.8% of the video game market. A recent success

story is Tencent in China, which is an Internet enterprise comprising

of various businesses. Tencent’s game revenue in 2017 was $18.6

billion, with the mobile game Glory of the King accounting for the

bulk of this revenue. 12 Apart from the big game developers,

independent developers, such as Daybreak and Dong Nguyen, have

demonstrated that success is possible for a small game development

studio. Although the revenue that independent developers make is

limited to two percent of game sales in 2013, the fast growth of

independent developers deserves attention.13

However, there are also numerous “zombie” mobile games in

various application (app) stores.14 As of January 2015, 83% of the

mobile games (1.42 million apps) on the Apple Store had been

considered “zombie” games.15 This tendency leads developers to

clone gameplay, graphics, structures or titles of already popular games

to appear in the top search results by offering a familiar experience.16

9 Id. at 3.

10 Ian Bogost, Persuasive Games: The Expressive Po wer of Videogames (MIT Press, 2007).

11 China Game Publishing Committee et al., sup ra note 5.

12 Zhongguo Fanyule Chanye Fazhan Baipish u (中国泛娱乐产业 发展白皮书) [China’s Pan-

Entertainment Industry Development White Paper], TENCENT GAMES (Mar. 7, 2016), http://games.qq.co

m/a/20160307/051150.htm.

13 Drew S. Dean, Hitting Reset: Devising A Ne w Video Game Copyright Regime, 164 U. PA. L. REV.

1239, 1240 (2016).

14 Game industry investigators also use the term “zombie” to describe those offerings on the various

app stores that appear outside of top lists. Zombie games usually i s tough to be found, rated or download

by users in app stores. Due t o the low threshold and rapid rate of return, more developers have joined to

imitate popular games in order to be found or rank ed top in app store.

15 Sarah Perez, “Zombie” Apps on the Rise –83% of Apps Not on Top Lists, Up from 74 % Last Year,

TECH CRUNCH (Jan. 30, 2015), https://techcrunch.co m/2015/01/30/zombie-apps-on-the-rise-83-of-apps-

not-on-top-lists-up-from-74-last-year.

16 Simon Parkin, Clone Wars: Is Plagiarism Killing Creativity in the Games Industry? , THE

GUARDIAN (Dec. 23, 2011), http://www.guardian. co.uk/technology/gamesblog/2011/dec/21/clone-war s-

games-industry-plagiarism.