모바일 게임물의 창작성 및 실질적 동일성의 판단 기준 -대법원 2019. 6. 27. 선고 2017다212095 판결 (‘포레스트 마니아’ 사건)을 중심으로

Recently, disputes over game plagiarism are arising in line with the expansion of the game industry. The protection of game materials has long been discussed, of which the most important issue is concerned with to what extent the creative nature of game materials can be recognized and the criteria for determining substantial similarity. This paper intends to summarize the criteria for determining the extent to which game materials are afforded protection from the perspective of copyright, with the focus on related discussions as well as domestic and overseas cases. Many courts decisions on game disputes reveal that courts have tended to deny copyright infringement claims. When determining the creative nature of game materials, which is comprised of the ideas and expressions, courts have based their judgments with more emphasis on the idea part, and employed the legal principle restricting intellectual property rights, such as ‘merger doctrine’, ‘de facto standards’ and ‘scènes à faire.’ Such judgments of the courts are thought to have reflected the fact that there is room to consider a certain game as a mere collection of elements that have been commonly used in prior games. Even where the creative nature of a game was recognized, substantial similarity was denied as the scope of recognition of creativity was narrowly established. Against this backdrop, a recent Supreme Court ruling has drawn keen attention. The Supreme Court held that, in determining the creative nature of a certain game material, courts shall consider, in addition to the creativity of individual constituent elements, whether various constituent elements have been selected, arranged and combined in the process of technological implementation under specific production intentions and scenarios to the extent that they can be protected as a work with a creative individuality distinct from other games. Under these criteria, the Supreme Court recognized the creative nature of the plaintiff game through a concrete examination in relation to the rules of the game and its relationship with the preceding games, as well as its substantial similarity in relation to the defendant game. I think the foregoing decision has been timely rendered at a time when the protection of game works is desperately needed. The pertinent ruling is also significant in that the scope of protected expression has been expanded to some extent so as to enable the identification of the creative elements of the game, which would have been regarded merely as an idea under previous cases, and that copyright infringement has been recognized in such cases. The foregoing decision is expected to provide much implications for game-related disputes and the field of game development in the future.