Historical Evolution Of Video Game Copyright Protection In The U.S. And Its Enlightenment

Video game has gained its economic importance through several decades of development since it was born,copyright protection of video games surely has effect on whether this industry could be further developed.U.S.A.is known for its case law tradition,as a result,copyright protection of video games in the US is largely shaped by relevant cases.Hence,this thesis takes case study and historical study on the evolution of video game copyright protection in the US and discuss its enlightenment for China.It consists of five chapters.Chapter ? discusses the definition,characteristics,and classifications of video games,looks back on the development of video game industry in the U.S.and takes on a three-period divide which distinguish the arcade age(1970-1982)between the console age(1982-2000)and the internet age(after 2000)depending on their respective platform,technology,and market standing.General theory on copyright protection of video games is also deliberated in this part.Chapter ? considers copyright protection of video games in its arcade age.By looking into cases dealing with identical clones,cases addressing substantial similarity and cases that no infringement is found under this period,the conclusion that a basic video game copyright regime has been developed is drawn.In this regime,the display of video games on the screen is widely regarded as audiovisual work and thus copyrightable,whether video games satisfy the requirements of originality and fixation is no longer disputed.Applying the idea-expression dichotomy,game rules and mechanics are seen as ideas underlying the game,thus fall outside the scope of copyright protection.Only identical copying is prohibited when expressive elements in copyrighted work is treated as a merge with idea or as scènes à faire.In copyright infringement claim,a plaintiff must show defendant have access to the copyrighted work and there is substantial similarity between the two works.When deciding substantial similarity,the “ordinary observer “test is established.Chapter ? researches copyright protection of video games in its console age.Illustrating the karate combat games and card game under that very period,this part concludes that the improvement of video game copyright regime comes in three aspects.Firstly,comparing with purely fancy games,copyright law renders little protection to video games that based on sports or card game from the public domain.Secondly,courts excluded expressions from public domain when deciding the scope of video game copyright protection.Lastly,the Ninth Circuit adopted the “extrinsic/intrinsic “test when examining substantial similarity,even though courts at that time mainly followed the regime on copyright protection of video games which formed in precedent case law.Chapter ? investigates copyright protection of video games in its internet age.By analyzing three cases on mobile games and card game which occur after 2012,this part expounds shifts in case law on copyright protection of video games.These shifts present the expanding realm of protectable expression,and a light touch when courts applying the limiting doctrines like the merger and scènes à faire doctrines.The argument that these cases effect a paradigm shift in video game copyright,however,comes with several caveats.That's to say,all these three cases were decided at the trial court level,no appellate court has approved or adopted these shifted rules.And this legal regime may flip from overprotecting clone games to overprotecting their antecedents.But this thesis held that there are substantial reasons to believe the new video game copyright regime will continue to protect the vital ability of game studios to creatively iterate and innovate,and it will obtain further acceptance as well.Chapter ? summarizes the historical evolution on copyright protection of video games in U.S.A.,and further inquires into the reference from which China could learn.First of all,video game is better be treated as audiovisual work after the amendment of Chinese copyright law.Next,Chinese court could somewhat learn from several principles developed by U.S.court when deciding the scope of video game copyright protection.Finally,the “ordinary observer” test,as well as the “extrinsic/intrinsic” test should be introduced to Chinese court when deciding substantial similarity.If that practice is proven successful,Chinese supreme court could announce several cases as guiding cases.