Home / Issues / Volume 11, Number 2 / The Copyright Protection of Video Games from Reskinning in China—A Comparative Study on UK, US, and China
The Copyright Protection of Video Games from Reskinning in China—A Comparative Study on UK, US, and China
By LI Zihao | Article | 11 Tsinghua China L. Rev. 293 (2019) | Download Full Article PDF

Video games are becoming a popular form of entertainment, as well as an important part of the Internet industry. With the advancement of computing and graphics technologies, video games are now defined by various elements, which are the intellectual achievements of the designers. However, the prosperity of video games also creates a breeding ground for copyright infringements. Reskinning, as one of the popular cloning methods, has gravely harmed the interests of game designers. Being the largest video gaming 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 protection of video games from reskinning in China, this article firstly introduced genres of video games, the current legal protection mechanisms and the subject matter of video games to demonstrate the status quo of video game and its regulation. Then the article compared the current copyright protection of video games among the US, the UK and China and analysed each legal approach for the purpose of exploring possible approaches to improve copyright protection of video games from reskinning in China. Finally, the article proposed three suggestions for Chinese copyright law from the subject matters of copyright protection, assessment criteria and industry-based self-regulation parts.

I. Introduction

With the emergence of the Internet technologies, video games 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. 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, but as a type of creative work, legislation should draw a line between legitimate inspiration and plagiarism, to serve the developers’ 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, 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%. 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.

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. 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. While this new industry is growing rapidly, it is also regarded as a highly controversial sector because of the low market access requirements and rapid rate of return. The mobile game industry is disruptive and is the largest and fastest-growing area of interactive entertainment. According to the 2017 China Game Industry Report , 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. 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.

However, there are also numerous “zombie” mobile games in various application (app) stores. As of January 2015, 83% of the mobile games (1.42 million apps) on the Apple Store had been considered “zombie” games. 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. Therefore, a well-designed regulatory framework for the video game industry is being called upon to address various concerns on the deteriorating environment for innovation.

B. Reskinning – Cloning in the Digital Game Industry

Although the video game sector is prolific and highly profitable, it is rife with the copying, imitation and redevelopment of other developers’ ideas. New developers have innovated and imitated the storylines, gameplay and some game elements of model games. To a greater extent, such copying is both healthy and essential to the industry. However, there are some developers who unscrupulously copy other games, through various game cloning methods.

The first game cloning method is one-for-one code copying. A video game is essentially a computer program with several databases. Some new developers imitate existing games by copying the code to generate a new game. In this case, the new developers use tools to clone the game code directly. This can be done through a smartphone (by using an application cloner). Some new developers use the old game’s development document to copy it directly, as it is in the Tetris case. Legally speaking, this behaviour is not controversial, because under copyright laws of most of the countries code is a copyrightable subject. Hence, directly copying the code constitutes a copyright infringement. However, whether other developers using reverse engineering to retrieve the game coding constitutes an infringement is still arguable. For instance, in Atari Games Corp. v. Nintendo of Am. Inc., the Federal Circuit Court of Appeals held that Atari’s reverse engineering was not fair use. The court declared that the intermediate copying of the Nintendo’s code during the examination of the microchip itself was fair use, but the source code itself obtained from Copyright Office was unauthorized, which cannot be protected under fair use. This opinion is also cited in other decisions on matters in connection with the use of reverse engineering by other courts.

The second game cloning method is imitation of game mechanics or remixture of multiple games’ mechanics. This method is generally acceptable and incentivised. New developers use different expressions to describe the same game rules or gameplay. For example, Call of Duty and Counter Strike GO are both First-Person-Shooter (FPS) games. Their rules are the same, in that two rival teams engage in combat with each other to defuse a bomb, or rescue or guard hostages. At the end of each game, players are rewarded based on their individual performance (i.e. number of persons being killed). These games both use this simple gameplay through different expressions. The two games use completely different expressions, such as the appearance of characters, the weapons, storylines, background music, rules and maps. Thus, this type of imitation is allowed. From a legal perspective, it is regarded as the imitation of a game idea. Based on the principle of idea/expression dichotomy, this type of copying is not copyrightable.

The third game cloning method is game reskinning, which involves changing the graphics of an existing game (usually, altering the appearance of characters), while retaining the original expression and actual gameplay. With game reskinning, a developer can work with an existing game and change its design, artwork, music and rename it. It is termed reskinning simply because there is only a change in the appearance. This method of cloning is of complex legal nature. Not all countries have a good strategy to protect video games from reskinning. Unlike the other two types of imitation manners, reskinning simply alters the graphics of existing games and but retains the gameplay, rules, storyline and other elements. It brings new challenge of idea/expression dichotomy and the uncertainty of legal nature of reskinning. The protection strategies of video games are also ambiguous. In light of such, this essay will discuss and examine the cloning technique of reskinning. In the following sections, this essay will demonstrate that China should protect video games from reskinning and will discuss how to introduce this protection.

C. Research Aims, Potential Contributions and Limitations

With the thriving development of the video game industry in China, there are increasing infringements of copyright in video games. This article analyses the video game genre, the business model and the subject matter of protection. It compares the current legal protection mechanisms in the US, the UK and China, with a view to explore possible approaches for China to improve the copyright protection of video games.

Through the analysis of the business model and the genre of video games, this article examined if all kinds of video games can be protected by copyright law and which genre of games or elements can be protected easier by copyright law. Moreover, this article emphasized how to protect video games from “reskinning” cloning instead of other imitation manners. Thus, after comparison between the UK, the US and China, the article concluded the relevant legal doctrines and underlined how to distinguish the gameplay, game rules and expressions and how to maximize the protection of video games from reskinning. Apart from copyright protection, in order to better serve the interests of designers, this article proposed the sector-based regulations as a supplementation through introducing and comparing with other creative industries.

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