On The Copyright Protection Of Game Mods

Game modification refers to the new content formed by players by modifying,editing and adding in-game elements.It is a kind of user-generated content(UGC),so has the unofficial authorship,the non-commercial motivation,and the free access.According to the scope of modification,it can be divided into effect-enhancing modification,add-on modification,graphical modification and total-convesion modification.In practice,the copyright issues of game modification are mainly concentrated in three aspects: First,whether the game modification constitutes a work.Because the public persistently misunderstand game modifying as some entertainment activities,and most of the modification only aim at the data parts which cannot be covered by the copyright of game software,it has never been recognized and protected by the copyright law;Second,What kind of work does game modification belong to ? At present,the academic community is still inconclusive on the category of the game modification work,“cooperative theory”,“derivative theory” and other viewpoints are in dispute,and the ownership of the rights of the work is unclear,which resulting in conflicts frequently occurring on the issue of distribution between the game publisher and the player;the third is whether the game modification is an infringing work.The collaborative creation and distribution of game modifications determines that the existing pre-licensing system cannot be applied due to the excessively high authorization transaction cost.Players generally use the original game production into modification without the author's permission,which may cause the infringement of the original game.The above three points jointly determine that game modification has long been in a dilemma of copyright protection.First,in terms of copyrightable,the game modification is not completed unconsciously or accidentally,but is the product of expression under the player's specific meaning.In the other side of originality,it can be regarded as audiovisual works by virtue of its dynamic screen at runtime,or classified as textual works,fine art works and other types based on the elements contained in their static images,so they have the legitimacy of obtaining work protection.Secondly,in terms of the category of the work,owing to the lack of subjective communication between the player and the publisher,and the two did not implement objective co-creation behavior,the game modification is not a cooperative work;on the contrary,the game engine,which lie in the expression level of the original game,will be inevitably involved by modders in the process of game modifying.Its essence is to use the content of the existing work to create,so as to meet the constitutive requirements of the derivative work,and its copyright should belong to the player.Finally,for the risk of infringement faced by the game modders,whether it is an end-user license agreement or creative commons,it is impossible to improve the efficiency of authorization while taking into account the fair distribution of the benefits of the work at the same time,so private copyright rules are not feasible.The correct approach is to resolve it by demonstrating that it constitutes a fair use of the statutory work protection exception rule.Since the current “personal use”and other terms all have interpretation barriers,this article introduces the “transformative use”theory to explain the legitimacy of game modification.From the perspective of ordinary players as a “rational audience”,on the one hand,the game modification not only includes the content level conversion of the original game's storyline,gameplay rules,artistic settings and style,but also reflects plenty of purposes differing from the original game's,such as expressing personal opinions,propagating traditional culture,serving education cases,etc.On the other hand,it does not harm the original game's inherent and potential market interests,but instead promotes its market sales.So that it constitutes a fair use of the original game work.Regarding the improvement and strengthening of the copyright protection of game modifications,this article puts forward the following suggestions: First,the transformative use involved in the creation of game modifications should be regarded as the general Provisions of fair use;second,non-commercial user-generated content to which the game modifications belong should be listed as a specific situation of fair use,so as to provide a complete and comprehensive copyright law protection for this emerging forms of expression.