Despite various forms of regulations, the Korean market for games is undergoing a steady growth. In particular, the market shares of mobile games are rapidly increasing due to the widespread use of smartphone devices. In the case of mobile games, they can be developed with only a small group of developers at low costs, and they also have little to no entry barriers due to the expansion of platforms. However, mobile games in the market tend to be narrowly concentrated in a limited number of contents and game genres, which have been the source of an endless stream of disputes involving plagiarism. For example, once a mobile game with successful content and genre is introduced in the market, other games with similar formats are often introduced within a very short period thereafter.
Until recently, most disputes involving plagiarism in mobile games tended to be resolved without having to go to court. However, it is anticipated that there will be a sharp increase in the number of lawsuits between game developers or between game developers and platform enterprisers seeking injunctions against servicing and/or selling the suspected games or claiming compensation for damages (including application for a provisional disposition) based on grounds such as copyright infringement, unfair competition and torts. In particular, the Unfair Competition Prevention and Trade Secret Protection Act (the “Unfair Competition Act”) added Subparagraph 10 to its list of prohibited acts under Article 2(1) (“Subparagraph 10”) to appropriately respond to new and various types of unfair competitions triggered by the changes in technologies and other influences since January 31, 2014. Subparagraph 10 provides that the following acts are prohibited: “Acts of infringing on other parties’ economic interests by using the outcomes, etc. achieved by such parties through substantial investment or efforts for one’s own business without permission in a manner contrary to fair commercial practices or competition order.” The Korean government currently enforces Subparagraph 10 as a complementary general provision regulating unfair competition, which enables potential plaintiffs to make arguments based on Subparagraph 10 even when the alleged plagiarism does not constitute a copyright infringement.
Initially, in litigations alleging copyright infringement between games with similar features, courts have dismissed copyright infringement arguments based on the following grounds: “Since a game’s abstract genre, background, story development, rules and other components are mere ideas, they cannot be protected under the Copyright Act. Moreover, the expressions that commonly or typically accompany the process of materializing the foregoing ideas into games do not constitute the subject matters protected [under the Copyright Act].” The representative cases concerning copyright infringement in games include: (i) the case concerning “GunBound” by Softnyx and “Fortress 2 Blue” by CCR where the similarities in the tank characters and the game methods were disputed and (ii) the case concerning “Bomberman” by Hudson Soft and “Crazy Arcade” by Nexon where the similarities in the maps shaped like go boards and the gaming methods using bombs (water balloons) to attack were disputed.
However, on October 30, 2015, in the lawsuit raised by a British game developer against a Korean game developer in connection with the game “Match Three,” where points can be obtained by connecting three or more of the same pictures to make them disappear on a game board shaped like a go board, the Seoul Central District Court, while refusing to find a copyright infringement based on the rationale that the overlapping section on rules of the Plaintiff’s game and the Defendant’s game was not subject to protection of copyrights, and, the section on specific methods of expressions which were subject to protection of copyrights were not actually similar, nevertheless held for the Plaintiff. In its opinion, the court held that the release of the Defendant’s game and provision to the general public constituted an unfair competition contrary to fair commercial practices or competition order (finding an act violating Subparagraph 10) and an “illegal act” based on the grounds that “in light of the developer’s creativity and efforts and use of tangible and intangible assets in the development process, etc., the Plaintiff’s game was developed as a result of substantial investments and efforts by the Plaintiff, and, even if it does not reach the degree of copyright infringement, the two games’ methods of expression are substantially similar and the gaming methods are identical, which substantially permits the view that the Defendant’s game was developed based on the Plaintiff’s game” and, in particular, “the game rules including the method of granting bonus points can be deemed to have been introduced first by the Plaintiff.” The Seoul Central District Court then ordered the Defendant to “suspend servicing of the relevant game and compensate the Plaintiff about KRW 1.16811 billion in damages, and further pay the Plaintiff about KRW 83 million per month until the provision of services has been suspended.” The foregoing decision by the Seoul Central District Court suggests that, even in the case that the actual similarity of the methods of expression is not recognized, the application of Subparagraph 10 can expanded and applied. Accordingly, it is anticipated that legal disputes between game developers that are servicing similar games will likely be actively litigated in the future.