Research On The Comparison Approaches Of The “Substantial Similarity” In Video Games’ Copyright Infringements

In recent years,as the video games’ industry grows rapidly,lots of video game copyright infringements take place frequently.When these copyright infringements are litigated in courts,the hardest issue judges have to decide is whether the accused game and the involved game are substantially similar.This paper focuses on how to judge “substantial similarity” through different comparison approaches under this background.This thesis is consist of introduction and six main parts:In the first part,the author clarifies the definition and content of video games.Then he introduces the current situation of video games’ industry and the judicial practice of the copyright protection in China.Generally speaking,there is no dispute on the protection of game programs as computer software.However,because video games have many particular characteristics,it is very hard to say which work the appearances of video games is.Judges use different tests and approaches to judge “substantial similarity” and have different outcomes as a result of the unclear type of work.The author then points out the problems in terms of judging similarity:(1)what type of work the appearances of video games are?(2)how to apply comparison tests and methods to judge “substantial similarity” between two video games?The second part explores the nature of the appearances of video games.The author concludes that it is the best approach to consider the related images of a video game as an audiovisual work by comparing different ideas.The only one image should be protected as musical work and pictorial work.He also analyzes the feasibility.The third part,he introduces that in the process of comparing two games,in addition to idea/expression dichotomy,the limiting doctrine is always used to exclude the elements which are unprotected by copyright.Then he traces the recourses of the comparison tests related to video game comparison in the U.S.,evaluates the pros and cons,and develops these tests to fit with video games’ comparison.In the fourth part,the author introduces the approach of the copyright protection of video games as audiovisual work and the application of the comparison tests in cases and sums up the experience of video games’ comparison.Then the author draws on the experience from the practice in the U.S.and analyzes how to apply the developed comparison tests in China by the examples of recent cases.Finally,the author gives his suggestions concerning the video games’ comparison in copyright infringements in order to be used as reference in the judicial practice.He then offers some proposals:(1)game programs should be protected as computer software and “three steps test” should be applied when do comparison.The only one image of a game can be protected as a pictorial work and/or a musical work,and the related images of a game should be protected as an audiovisual work.(2)a series of images of a game can be further separated into story elements and audiovisual elements.When comparing story elements,“pattern test” or “levels of abstraction test” should be applied.In terms of the comparison of audiovisual elements,the corresponding tests should be applied when comparing element by element and then comparing elements as a whole.The idea/expression dichotomy and limiting doctrine are always used to filter out the unprotected elements before doing comparison.In the end,the author draws a mind map for comparison of video games.