video game
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This article has been written by Ashutosh Mishra.

Introduction

The gaming industry is one of the fastest-growing industries in the world. Videogames have evolved since the time when Mario, Contra, Pac-Man were played, gone are the days when videogames were only confined to be played by children, now considering the survey, the industry has more adult players as compared to the children.[1] The videogame industry is a multi-billion dollar industry. With the global game market reaching $137.9 billion in 2018 with mobile revenues amounting to approximately 50% of the total global market.[2]

With the gaming industry booming rapidly, the growth of piracy is also going directly proportional with its increase. Piracy came into existence within some time from the date of the existence of videogames. The hackers encrypting the source codes and software of games make the games available at some cost or free which is anyways lesser than the original price of the game.

The first-ever convention for the protection of literary and artistic works dates back to the Berne Convention for the Protection of Literary and Artistic Works, generally known as Berne Convention, 1886 which was accepted in Berne, Switzerland. The convention was entered into by the parties for the protection of the copyright of the work of the author and acted as an international agreement for the same with the parties to the convention abiding by their state copyright laws. The signatories to the convention include India, United States of America (USA), United Kingdom (UK), China, etc. With certain amendments to the convention, computer programs, game codes were added to be protected under the ambit of copyright law.

World Intellectual Property Organisation (WIPO) came up with the WIPO Copyright Treaty in the year 1996 due to the growing advent of technological advancements and the growth of the videogame industry and protection of the original expression of the thought of the author and not the ideas.

Countries drafted the independent laws for the protection of the Intellectual Property with Copyright Laws, Trademark Laws, Patent Laws, Industrial Design Laws so as to protect the right of the authors in relation to their work and inventions. In context to the videogame industry,  music, code, story, characters are copyrightable; company logo, game title, game sub-title, company name comes under the ambit of the trademark; hardware technical solutions, game design elements, technical solutions in software, unique method are protected under patents.[3]

Games being played on computers, consoles (Sony Playstation, Nintendo, etc.), mobile phones need to be protected as a whole by the strict laws into enforce to check for no infringement of the Intellectual Property in the selling, distributing or licensing it to any person or Entertainment Company. Videogames are protected as intellectual property as they are audio-visual and also as it contains both literal and non-literal elements.

The researcher would be dealing in-depth regarding the protection of intellectual property in videogames under Copyrights, Patents, Trademark and Industrial Design. What all laws protect the industry, till what extent a developer can copy another game, are games with similar concepts permissible by law? The global perspective involving the laws in the USA, India and UK with problems being faced globally will be discussed and laws will be analysed along with the emerging conflict of interest amongst the game developers in relation to the copying of games, characters and many more.  The researcher aims to put forward his suggestions which can improve the videogame industry in India and globally.

Laws protecting video games industry

  1. Copyright laws- Copyright is concerned with protecting the work or expressions of the human intellect. Copyright protects literary and artistic works. It includes music, fine arts, technology-based works such as computer programs and electronic databases. Article 2 of Berne Convention, 1886, states the following, “”The expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expressions, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words”.[4] It gave a narrow meaning and thereby with the WIPO Treaty, 1996 computer programmes were added.  In the case of Tetris Holding v. Xio Interactive[5], the defendant created a game named, Mino whose appearance was nearly identical to Tetris with Tetris contending that 14 copyrighted elements were present in defendant’s game. The defendant admitted to downloading of Tetris and conducting extensive research on the same to check for what parts can be legally copied and copied the rules of the game. Later on, it was presented by Tetris that in-game screenshot was taken by the defendant. After applying relevant tests of merger and scenes-a-faire which helped in differentiating when an idea and expression are inseparable. The copying of the rules of the game is the infringement on the copyright laws as each game has different rules. The Courts stated that “there is such similarity between both the games which is akin to literal copying by the defendant”. The tests were easily dismantled as the copying was very clear. Another case of Atari Games Corp. v. Nintendo of America Inc.[6], Nintendo designed a 10NES lock-out system to prevent unauthorised games from running on its console. Atari began its work to reverse engineer the 10 NES but did not succeed. In 1987, Atari became the Licensee of Nintendo and gained the right to make games for Nintendo. Atari obtained the source code of 10 NES from Copyright Office by falsely alleging that copy was required by them and succeeded in making its replica by the name, Rabbit with the same functioning. Atari was held liable for copyright infringement by deceitfully obtaining the source code and making software akin to 10 NES. The above-mentioned cases clearly define how computer programmes are protected under copyright law as well as taking of concepts does not amount to the infringement if new changes have been added on and the proper difference is visible.
  1. Trademarks laws- A trademark can be a symbol, word, product package, sub-title, a title used to identify the product from other products present in the market. It includes the name of a company (eg. “Nintendo”), name of game (eg. “Super Mario”), logos, etc. With the ownership of a trademark, an exclusive right to use that mark is available. It is beneficial in brand marketing, gaining popularity and recognition amongst the consumers. The trademark should be unique and have fanciful marks which give it strong protection and should not have generic terms which avail no protection. In Rogers v. Grimaldi, The test consists of two parts: (1) whether the trademark use is artistically relevant to the defendant’s work; and (2) explicitly misleading. The modern Rogers test is thus highly protective of expressive trademark uses. In the following cases, the application of the Rogers test has been used to determine whether trademark use in a video game was expressive-work-protected speech.[7]
  1. Patent laws- A lot of game developers in the industry are of the view that games are simply computer software and they cannot be patented. Patents may be obtained on anything under the sun that is originally made by the man.[8] The methods, processes performed by a game, a game disc which has game software loaded can be patented by the author. Patents are of two types, patent of utility and patent of design. Patent of utility is related to science and technology, software innovations in digital games, technical processes that enable real-time multiplayer games. Patent of design includes the appearance of a game, geographical locations, icons, etc. Patents have been issued on many videogames emerging with new concepts, eg- US Patent No.- 6,200,138, entitled “Game display method, moving direction indicating method, game apparatus and drive simulating apparatus,” and assigned to Sega Enterprises, Ltd., describes a game method in which movable objects automatically move away from an approaching character.[9] Licensing of patents to others helps the parent company in a generation of wealth by license fees. With the help of patents, the hard work of the developers with their new inventions can be praised and helps in the progress of literary works.
  1. End-user license agreement- EULA is the agreement which is entered between the licensor and the purchaser which provides the right to the purchaser to use the software. This agreement helps in the distribution, selling or licensing of software from the licensor’s perspective as it gives the right to the licensor regarding putting of clauses relating to non-transferable, non-exclusive, limited or restricted right to install the software for own use and not for resale. The agreement to restrict undesirable uses of the app and to not use the software or application for hacking servers, reverse engineering, etc. The licensor can limit its liability with certain clauses for the protection of the software and insert an indemnity clause against the licensee or purchaser if any of the conditions agreed into by the purchased have been breached. In Davidson & Associates Inc v. Internet Gateway[10], the plaintiffs Davidson and Vivendi Games, operating as Blizzard Games, had established an online system whereby end-users could access and play games, online, 24 hours a day. Internet Gateway had entered into a EULA with Blizzard, one of the terms of which was to prevent reverse engineering. Internet Gateway ignored this term and reverse-engineered the Blizzard system online, thereby allowing it to create its own online gameplay system which would work in conjunction with Blizzard. Although a clear breach of the EULA, the defendants argued correctly that reverse engineering was a fair use exception under US copyright law. Nevertheless, the Court held the EULA and other terms of use contracts overrode intellectual property law because, as individual parties entering into an agreement, they were free to agree to forego exemptions provided for in intellectual property law.[11]

The global perspective of the industry

  1. United States of America- US Congress enacted the Copyright Act, 1976 with the view of protecting the multi-billion dollar video game industry. US Copyright Office specifically states: “Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game.” Copyright laws in the USA have been deciphered and a victory was achieved in favour of the videogame industry after the Tetris Holding Ruling. With various decisions taken by the US Courts on copyright cases, the judgments arising out of them act as precedents and are helpful in differentiating what all things violate the copyright law and what all do not. Trademarks in the US can last forever. Trademarks are very helpful in the brand promotion, marketing of the game. Patents too are very well protected in the USA and have Patents of utility and patents of design which further protect the rights of the author.[12]
  1. India- The videogame industry in India is growing and is expected to grow more in the near future but currently covers a minuscule part in the global market.
    1. Copyright Act, 1957-
    Copyright means the exclusive right to do or authorise others to do certain acts in relation to (1) original, literary, dramatic, musical and artistic works, (2) cinematograph film, and (3) sound recordings. Generally, copyright is the right to copy or reproduce the work in which copyright subsists and is listed in S. 14 of the Copyright Act, 1957In the videogame industry, it covers the computer programmes, source codes, game characters. The main object of this Act is to reward the author, composers, and game developers with their work’s exclusive right for a limited period of time and earn monetary gains.[13] Sec. 2(o) of the Copyright Act, defines literary works to include computer programmes, tables and compilations including game codes, computer database which means that the game developer, coder, programmer can be the author of that work and the game animator, creative director, etc. will not be considered as the author.

 https://lawsikho.com/course/diploma-intellectual-property-media-entertainment-laws

Sec 2 (ffc) of the Copyright Act, includes computer software and programmes. Programmes devised for the working of computers is generally regarded as literary work. It thereby, includes the making of the software of video games.

In Sony Computer Entertainment Europe Ltd. Vs Harmeet Singh and Ors.[14], the affiliate company of Sony Computer Entertainment made gaming consoles known as Playstation 3, Playstation Vita, etc. and developed various games to be played on those consoles. One shopkeeper, Mr. Harmeet Singh and his associates sold such consoles in New Delhi by unlocking the system and modifying original equipment, thereby, making it for use with pirated software with the help of ‘Jailbreak’software which breaks the encrypted code of the game. This was done by charging a nominal price from the purchaser enabling him to play expensive games at a very low cost. Mr. Singh only bought one original copy of the game and by overriding the code sold it to others. An ex-parte injunction was passed by the Court preventing Mr. Singh from copying, selling offering for sale, distributing, modifying the processing unit of consoles.[15]

2.2. Patents Act, 1970- The basic essence of a game lies in the gameplay with the controls, story, video, audio, etc. Section 3(m) of the Patents Act, 1970 (“PA 1970“) provides that method of playing a game does not count to be an invention. The software of a game is not patentable but game code is patentable if it has some uniqueness regarding technological innovation. The designs of a game are not patentable and even are not covered under the Design Act, 2000. A video game have many designs like in the game levels, terrains, etc. which are not even protected by the Design Act. In the case of Mattel v. Jayant Agarwal, Delhi High Court observed that a mere method of playing a game is not patentable.

2.3. Trademarks Act, 1999- In videogames, the game title, sub-title, character’s name are protected by trademarks. Videogames such as Super Mario, Tetris have been registered as trademarks at Indian IP Office. Sec. 29 and 135 of the Act, grants relief if the trademark of the registered game or company has been infringed by any party.

  1. European Union- There is much less confusion when it comes to defining a computer program. European copyright law does not provide any definition of a computer program.[16] The European Copyright Framework consists of several Directives harmonising copyright law among Member States to a certain degree, and other minor documents. Even though the harmonisation is not strong, and a computer games case has not came to European Court of Justice, or any other EU court, computer games, due to their specific characteristics (trans-border sales and exploitation), will have to be addressed from an European angle eventually. The courts within the national states have tackled the problem of computer games rather poorly, creating great uncertainty and confusion. Such a situation seems to support an EU approach. The EU copyright framework has focussed on harmonising the copyright law amongst the member states. Every state has its own law thereby, minimising the work of the European Court of Justice. Considering the global perspective in the videogame industry, India and EU have to evolve with the swift growth in the industry with certain amendments in their statutes and to include more trademarks, patents for the protection of the rights of the author and thereby, helping the industry to grow.

The emergence of conflict of interest in the videogame industry

In contemporary times, we can see the boom in the videogame industry with games having realistic battlegrounds, terrains, real-world object behaviours, etc. With n number of games coming into the global market with the same concepts, similar actions and storyline, the problems which other game developers are facing is of copyright infringement of the game, game coding used in the software, expressions used in the game, characters and many more.

Comparing, Player Unknown’s Battlegrounds, popularly known as PUBG, led by EPIC Games, Tencent Games and Fortnite Battle Royale, led by EPIC Games, with both of the games released in the year 2017, the games are down-the-lines similar. PUBG filed a copyright violation lawsuit against ‘Fortnite’ regarding the various similar features like battleground warfare, concepts, hosting players on various servers, game modes, etc.[17] This provoked a plagiarism controversy and allegations that ‘Fornite’ copied “Battlegrounds” items and user interface. As the earlier version of ‘Fortnite’ only had “Save the World” mode in which forts, walls were built by the players and had to defend them from the enemy. Later on, the game was updated and free-to-play “Battle Royale” portion was added to the game which was similar to PUBG as contented by the Korean game developer.[18]

In Nova Productions Limited v. Mazooma Games Limited[19], an appeal was filed in the Court regarding the infringement of copyright by two games, namely, Jackpot Pool and Trick Shot. The appellant alleged that these two games copied a number of outputs from their game, Pocket Money. Appellant’s contention was that the outputs that appeared on the screen of the defendant were inspired by the appellant’s game. It was held that no copyright infringement took place as the outputs were way too general. Court also stated that “mere emulation of another’s program without copying the source code or graphics would not constitute copyright infringement”.

I Ate My Heart Inc v. Mind Candy Ltd.[20], the character in the Moshi Monsters game was called Lady Goo Goo (a baby with blond hair wearing large sunglasses). The appellant objected to the defendant’s release of a song called Moshi Dance sung by Lady Goo Goo which was alleged by the appellant that it resembles Lady Gaga’s song Bad Romance which received a lot of views. Court held that the character of Lady Goo Goo can be misunderstood by people as Lady Gaga with the latter having a reputation in the music industry could amount to her loss of reputation.

Considering the abovementioned cases, it is easily inferred that a very similar resemblance to the character amounts to a violation of IP but the mere taking of a concept from a game doesn’t amount to copyright infringement.

Copying of concepts is anyways permissible but modification in it is necessary with new inclusions in the game are mandatory for the game to not violate any Intellectual Property laws, example, If a video game is a car racing game, then for making it unique, developer can add various types of hybrid cars, unique rewards, different way of showing the damages to the car, etc., then certainly, the game will stand out from the rest and no infringement would have been committed by mere taking of the similar concept from the other game.

PUBG and Fortnite differ a lot from each other in their availability and price as Fortnite is available for free on any platform like PC, PS4, X-box, mobile whereas PUBG is only free if played on the mobile version. The graphics of both the games are different as the weapons glow in the dark in Fortnite whereas there is nothing of this sort in PUBG. The gameplay is vastly different as fornite includes a building mechanic with collection of resources to build forts, bridges for the protection of the player from bullets whereas PUBG is an open battleground with 100 players being hosted at a time in a particular server with the players to collect weapons, medicare, driving vehicles and running over players with the same vehicle, etc. and in-game bombings with restricting of game area. These differences in the gameplay, different game codes sets apart both the games and therefore, in my opinion, it doesn’t amount to infringement of the copyright of the authors of PUBG.[21]

Conclusion and suggestive remedies

Video game industry is a multi-billion dollar industry which is constantly on a boom, globally. With the advent of technological developments and even piracy into the market, any infringement of the IP causes millions of dollar of losses to the game developers or the authors. Techno-legal framework in the videogame industry needs to be more strengthened for covering wide and relevant cases and lowering down the piracy by the sale, distribution or licensing of games with proper channelization with the distributors and licensees known in the industry and strict indemnity clauses in the end-user license agreement. The Virtual Private Networks (VPNs) are changed by the players sitting in India and playing games in New York, London by applying proxies on their servers. The geo-location restrictions are easily by-passed in India and thus, India needs a strong techno-legal framework.

 In India, various amendments in the Copyright Act, 1957, Patent Act, Design Act, 2000 needs to be done for making the Acts at par with global conventions and state laws of different countries for protecting the rights of game developers in the country. The designs in the games including the designs of locations, characters, game levels need to be protected to save the original authors’ work which is not covered by the Design Act.

The pace in the process of copyright, trademark, patent registration should be increased as the videogame industry is growing swiftly and every day hundreds of new games are available which can put the hard-work, money and time of the game developer at stake whose right could be violated. With more patents in the industry, it will be of utmost help to the company as it will attract investors, finances, provide credibility and strength in the market both domestically and globally. The state acts should be made stricter to curb the piracy which is prevalent in the market by restricting the VPNs and illegal websites access to the people.

If all the requisites are followed like proper agreements entered into, time to time amendments in the statutes for incorporating new changes in the global market, incentives to game developers for new inventions, the industry will have minuscule rates of piracy and will be able to contribute more to the national economy as well as the rights of the authors or developers will be protected. Though there is a provision for punishment if somebody does copyright infringement but the deterrence effect is not being created due to no proper watch-dog in this industry. Videogame industry and ministry of communications of each country should work in collaboration to eliminate the piracy from the game industry and thus, helping the rights of the authors.

Endnotes

[1] Fox News. (2018). More Than Half of Adults Play Video Games, Survey Finds. [online] Available at: http://www.foxnews.com/story/2008/12/08/more-than-half-adults-play-video-games-survey-finds.html [Accessed 28 Aug. 2018].

[2] Wijman, T. (2018). Global Games Market Revenues 2018 | Per Region & Segment | Newzoo. [online] Newzoo. Available at: https://newzoo.com/insights/articles/global-games-market-reaches-137-9-billion-in-2018-mobile-games-take-half/ [Accessed 28 Aug. 2018].

[3] Wipo.int. (2018). Video Games and IP: A Global Perspective. [online] Available at: http://www.wipo.int/wipo_magazine/en/2014/02/article_0002.html [Accessed 31 Aug. 2018].

[4] Taraporevala, V. (2013). Law of intellectual property. 2nd ed. Mumbai: V.J. Taraporevala.

[5] Tetris Holding v. Xio Interactive [2012] 3 (US District Court of New Jersey).

[6] Atari Games Corp. v. Nintendo of Am. Inc. [1992] 2d (United States Court of Appeals for the Federal Circuit).

[7] Rogers v. Grimaldi [1989] 2d (United States Court of Appeal for the Second Circuit).

[8] Diamond v. Chakraborty, 447 U.S. 303, 309 (1980).

[9] Gamasutra.com. (2018). Its Just a Game, Right? Top Mythconceptions on Patent Protection of Video Games. [online] Available at: https://www.gamasutra.com/view/feature/130727/its_just_a_game_right_top_.php [Accessed 29 Aug. 2018].

[10] Davidson & Associates Inc v. Internet Gateway [2004] 2d (US District Court for the Eastern District of Missouri).

[11] Nahmiaslaw.com. (2018). The EULA: What it Does, How it Works (and, what does EULA even mean?) | Hacked by./Xi4u7. [online] Available at: http://www.nahmiaslaw.com/the-eula-what-it-does-how-it-works-and-what-does-eula-even-mean/ [Accessed 28 Aug. 2018].

[12] Rights, N. (2018). A citizen’s legal guide to American copyright law | New Media Rights. [online] Newmediarights.org. Available at: https://www.newmediarights.org/guide/legal/copyright/citizens_legal_guide_american_copyright_law [Accessed 30 Aug. 2018].

[13] Narayanan, P. (2015). Intellectual property law. 3rd ed. New Delhi: Eastern Law House.

[14] Sony Computer Entertainment Europe Ltd. Vs Harmeet Singh and Ors [2013] (High Court of Delhi).

[15] Mondaq.com. (2018). Gaming Laws In India: A Toothless Regime – Media, Telecoms, IT, Entertainment – India. [online] Available at: http://www.mondaq.com/india/x/594124/Gaming/Gaming+Laws+In+India+A+Toothless+Regime [Accessed 30 Aug. 2018].

[16] Wipo.int. (2018). Topic 1: International IP Protection of Software: History, Purpose and Challenges. [online] Available at: http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=82573 [Accessed 30 Aug. 2018].

[17] BBC News. (2018). Fortnite sued for ‘copying’ rival game. [online] Available at: https://www.bbc.com/news/technology-44287860 [Accessed 31 Aug. 2018].

[18] koreatimes. (2018). PUBG takes US game firm to court. [online] Available at: https://www.koreatimes.co.kr/www/tech/2018/05/134_249598.html [Accessed 31 Aug. 2018].

[19] Nova Productions Limited v. Mazooma Games Limited [2007] (Court of Netherlands).

[20] Ate My Heart Inc v. Mind Candy Ltd [2011] (EWHC).

[21] Futurefive.co.nz. (2018). The differences and similarities between Fortnite Battle Royale and PUBG. [online] Available at: https://futurefive.co.nz/story/differences-and-similarities-between-fortnite-battle-royale-and-pubg/ [Accessed 29 Aug. 2018].


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