Constructing an eco-balanced copyright regime for the video game industry in the Chinese context

Abstract

Video games (VGs) constitute a cultural industry as well as a core copyright industry; the imagined worlds created in them offer richly textured emotional and social experiences that cross the boundary from entertainment to culture and art. Nevertheless, the creation and dissemination of VGs through new technologies raise new questions regarding copyrights allocation and the preservation of balance between exclusive copyrights and social utility. Firstly, the multimedia nature and interactivity of VGs make them unsuited to traditional forms of copyright protection. Secondly, new means of exploiting expressive content (e.g. re-skinning and modding) and disseminating information (e.g. live game streaming) have triggered concerns regarding game developers’ right to control the exploitation of their original games. Thirdly, the strong negative externalities of VGs (e.g. potentially addictive nature) have put VGs in an awkward position—whether to protect them as cultural products for free speech or to censor them for the state interest of protecting minors, or both. To address the above issues so as to ensure the sustainable development of the VG industry, this research adopts an incentive mechanism based on economic efficiency and social welfare. It argues that an optimal copyright system should favor neither the authors nor the subsequent users of cultural works but rather hold paramount the interest of society in developing a prosperous culture. Thus, copyright protection must grant game developers the opportunity to reap the fruits of their work while also allowing the public to productively use game materials for innovation and reducing or eliminating the conflict between the granting of rights and the protection of minors. Following this argument, the research first acknowledges the importance of protecting the copyright property interests of game developers, proposing to classify VGs as a new type of copyrighted work with a hybrid protection model, and to use a more balanced three-step test to determine the game adaptation infringement. Given that the granting of a copyright should cease when appropriate access to works is at risk, the research suggests that a two-prong scheme should be used to regulate game Mods—a conditional modding right for gamers and a common law duty imposed on game operators—and that a new statutory licensing mechanism should be specifically designed for live game streaming. Furthermore, copyright as “the engine of free speech” should also be restricted in the interest of preventing minors from the threats posed by violent, pornographic and other harmful contents of cultural works. As such, a new administrative regulation mechanism is proposed to address gaming addiction. The proposed eco-balanced VG copyright regime can maximize the benefits of additional intellectual creations while minimizing the losses resulting from limited access and the social costs of copyrighting such works. This research not only contributes important insights for the advancement of the copyright system in China and helps to promote the efficiency and quality of the respective types of litigations, but also adds significant value to the sustainable development of the VG industry and the improvement of overall social welfare.