The Sufficiency of Copyright Protection in the Video Electronic Entertainment Industry: Comparing the United States with the European Union

Article excerpt

I. INTRODUCTION

The video game industry has launched its "new generation" of video game entertainment. With a twelve billion dollar worldwide market(1) and claims of video games penetrating seventy percent of households with children under fifteen,(2) the industry hopes to gain easy access to this established market. Industry leaders have introduced new gaming consoles that could transform all pre-existing video game entertainment into something seemingly prehistoric.(3) The video game manufacturers will introduce state-of-the-art hardware and software in an attempt to recapture the phenomenal forty percent annual growth rate they have recently experienced.(4) For the television viewer, there is no escaping the corresponding media advertising blitz.(5) Moreover, for the television viewer with children in the household, the temptation to invest in these "next generation" video game systems may be overwhelming.(6)

Video game producers are embroiled in a fierce competitive battle for the dollars of those consumers who choose to enter the market. When video game producers create a new product or game, the greatest economic protection they receive is through the copyright laws, which prevent others from unfairly using their creation for their own personal profit. This Note will discuss the conflicting goals of copyright policy and how they are manifested in the video game industry. The Note will then focus on the potential differences in video game copyright protection in the United States and the European Union and will highlight the significant and abrupt changes that took place in 1992.

This Note will conclude that in the video game industry, which is dominated by a few large firms,(7) the pro-competition policy adopted by the federal circuit courts and the E.C. Directive regarding copyright protection of video games may be the best way to balance the conflicting goals inherent in the copyright laws. Moreover, the existing copyright laws will maintain a higher level of competition in the video game software design industry in both the United States and the European Union compared to a more aggressive enforcement scheme.

II. Copyright's INTERNAL CONFLICT

Copyright theory is confusing because it simultaneously embodies inconsistent goals. One of the underlying tenets of copyright protection is "to promote the Progress of Science and Useful Arts."(8) Copyright laws give to the copyright owner a monopoly that allows the owner of the copyright exclusively to exploit the created work.(9) It is often argued that the most efficient way to encourage individual effort in generating new works is through the potential of personal gain.(10) The monopoly given to the individual author by the copyright laws rewards the creator in order to benefit the public.(11) However, this monopoly can often directly interfere with the progress of science and the useful arts because it may limit the basis or inspiration for an author's new creation. If copyright protection is too broad, it may force each author to "reinvent the wheel" with each new creation by requiring him or her to ignore previously created and similar works.

These fundamental concepts of rewarding new creations with exploitable mini-monopolies and attempting to stimulate new creations by allowing access to or use of previous works are often incompatible with each other. This conflict is readily apparent in the video game industry. To encourage new software development, authors of video games are rewarded with an exclusive right to reproduce and distribute copies of their video game computer programs.(12) The primary incentive to create is provided by protection against the pirating of an author's creation.(13)

Copyright's other goal of providing access to and use of existing works manifests itself in the video game business as weak copyright protection against direct competitors. There are other ways to exploit an author's copyrighted video game computer program than through a pirate's mass reproduction and distribution scheme. …