Paper Details
Paper Code: RP04V12023
Category: Research Papers
Date of Publication: December 06, 2023
Citation: Mr. Supratik Deb, Student, “A Comparative Analysis of Copyright Law and Video Games”, 1, AIJIPCA, (2023).
Author Details: Mr. Supratik Deb, Student, Christ University, Bangalore
ABSTRACT
The development of computer technology and digital resources has led to the genesis of various new industries. The video game industry is one such sector that has been growing rapidly in the era of faster internet and affordable computer devices. With the proliferation of video games in the cultural milieu, the need to protect the interests of the stakeholders has gained a massive impetus. However, being a relatively new area of intellectual property law, the legal protection afforded to video games is complex and convoluted as video games involve an amalgamation of complex and cross-cutting technologies that attract a variety of IPRs to protect the various elements of the video game. This article examines the copyright protection afforded to video games in the USA, Japan, and India and draws a comparative analysis of the standard of protection granted to video games.
KEYWORDS
Copyright; Video Games; Fair Use; Derivative Works; Idea-Expression Dichotomy
Introduction
The advancement and development in the field of technology and computer resources have led to the growth of new and unique tech-based industries that thrive in the era of digitization. The video game industry is one of the newly established industries that have grown by leaps and bounds following the huge commercial success of the video game “Pong” developed by Atari in 1972. In the modern scenario, the video game industry generated $120.1 billion in revenue in the year 2019, while in the Indian context; the video game industry was worth $1.8 billion in 2021. With the growing influence of video games, evident from the market share held by the gaming industry, the need for legal protection and regulation of video games has become essential in the contemporary world.[1] Considering the new developments in the field of video games, there exist a lack of jurisprudence on the issue of intellectual property rights protection that must be afforded to the owners of video games. Video games, being an innovative as well as an interactive medium, consist of a wide array of elements and components that pose a challenge to the traditional perspective of IP protection, primarily due to the cross-cutting nature of video games. In addition to the protection of the video game itself which must be granted to the game developer or the publisher, the issue of user-generated video game content also comes to the fore. This research paper primarily focuses on the copyright protection granted to video games by making a comparative analysis of the legal provisions and judicial precedents concerning video games in India, the United States of America, and Japan.
Copyright and Video Games
The playable characters and graphics on a computer or mobile screen are operated and controlled by the player in a video game, which is a sophisticated interactive electronic game made up of numerous aspects.[2] As a result, the term "video game" can apply to everything from straightforward MMOs like World of Warcraft to complex board games like chess. The former species of video games, in the context of intellectual property, do not offer specific characteristics that can be granted IP protection; however, the latter category brings forth multiple elements that can be afforded IP protection.
The innovative and interactive nature of video games enumerates multiple forms of media such as text, characters, graphics, photographs, video, audio, animation, game engines, computer programs, etc. This enables the video game to have multimedia rights that include copyright, trademarks, patents, publicity rights, moral rights, and contractual obligations. Patents are used to protect the hardware consoles as well as the software elements from being cloned or reproduced illegally.[3] In addition to it, trademarks are used to prevent knockoff games from having similar names and catchphrases. However, copyright protection must be granted to the various elements of video games, which include drawings, characters, background art, graphics, photographs, video, dialogue, music, animation, title, catchphrases, etc.
From the international perspective, the Berne Convention for the Protection of Literary and Artistic Work, 1886 provides the ambit of protection for video games.[4] Article 2 of the Berne Convention provides a broad definition of literary and artistic work in “the literary, scientific, and artistic domain” that encompasses video games as well. However, this definition treats the entire video game as a single entity, and as such, fails to specify the various components and elements, such as the art, characters, sounds, dialogue as well as the computer software, which make up a single video game. This raises the issue of whether these elements would be protected individually as separate works or as a whole, considering that video games are typically composed of multiple copyrighted works.
The varied complexities and ambiguities have been recognized by the World Intellectual Property Or-generation (WIPO), which clarifies that video games cannot be classified and each video game must be examined on a case-by-case basis by thoroughly analyzing its components and elements. Because of this, the audio-visual component and the computer software component are principally covered by copyright protection in the case of video games. In that regard, video games can be treated as computer programs and, thus, are classified as literary works.
Copyright Protection Granted to Video Games in India
The video game industry in India is in its very infancy, in comparison to the huge boom in video game technology as well as market revenue generated by such games. As such, there does not exist any express provision that deals with the protection of video games in India. Concerning copyright protection, the Copyright Act, of 1957 does not specifically protect video games and their contents. However, the individual elements of a video game may be protected as literary, artistic, or musical works.
Given that the video game business is still quite young, the Indian judiciary has not given it much attention. The Ministry of Electronics and Information Technology has classified the rights of video game publishers and developers under "multimedia products"[5] because there aren't many significant legal precedents in Indian law. The Ministry of Electronics and Information Technology has specifically acknowledged that the primary component of a video game, the graphical or video component, may be protected by copyright under the category of "cinematograph film." Therefore, if the many important components of a video game meet the requirements listed in the statute, they may be protected under Section 14 of the Copyright Act.
One of the few instances that dealt with the protection of video games in India was Sony Computer Entertainment Europe Ltd. v. Harmeet Singh.[6] The case examined the issue of piracy of the PlayStation video games, in addition to deliberating on the issue of the subsequent sale of the pirated video game without the requisite license. Based on the facts and circumstances of the case, the Delhi High Court passed an interim injunction against such piracy which ensured that the PlayStation consoles could not modified without prior license by using pirated tools.
As for the ownership of the copyright, in the case of commercial “AAA” video games, the ownership vests in the publishing company rather than the individual contributors, in pursuance of the employer–employee relationship, as per section 17 of the Copyright Act. For indie video games, however, the ownership may vest in the author himself, in the absence of any contract to the contrary. However, a legal issue arises when the developers of a video game use copyrighted works, such as background music from famous singers or dialogues from existing movies. These works must be legally licensed as the Copyright Act provides clarity in this regard through Section 38A(2), albeit for cinematography films.
Copyright Protection Granted to Video Games in the United States of America
In the United States of America, the Copyright Act of 1976 does not specifically protect video games; however, there is a wide array of cases that sheds light in this regard. For a work to be copyrightable under the Copyright Act it must meet the threshold of originality, be fixed in a medium (whether analog or digital) and the work must be perceivable and reproducible.[7]
Additionally, the video games are given special protection in the United States of America. Some various associations and NGOs remain vigilant concerning video game piracy and other such infringements. The Entertainment Software Association (ESA) is one such association in the U.S. that manages and looks after anti-piracy programs that are required to deal with issues of piracy in the U.S. and a few other nations around the globe. The association works for the business as well as the requirements about public affairs of the companies that produce computer and video games for video game consoles, personal computers, and the Internet.
The ESA has been successful in preventing piracy of video games to a significant extent through diligent investigations and vigilance. It has initiated civil suits against the persons and companies that are responsible for pirating video games. The ESA has also been monitoring as well as supporting enforcement efforts against online piracy, investigations and prosecutions by law enforcement officials and government agencies, and training and educating customs agents and law enforcement officials in the U.S. and several foreign countries.[8] The threats addressed by ESA's efforts include downloads of illegal game files, sales of pirated games, and offerings of console circumvention technology and services, both online and via retail outlets.
In the United States of America, video games have been compared with other conventional forms of artistic media by the judiciary. The US Courts have granted video games the same standard of protection as that provided to traditional creative works.[9] While the video game’s artistic elements can be copyrighted, the gameplay elements are ineligible for protection. The Digital Millennium Copyright Act (DMCA) was passed in the US in 1998, which prohibits hardware and software anti-circumvention tools for video games.[10]
The doctrine of ideas–expression dichotomy comes to the fore when there is an issue regarding the similarities between two or more games. The doctrine broadly states that copyright protection does not extend to an idea, theme, plot, or storyline; rather it protects the manifestation or expression of that idea. In Atari, Inc. v. Amusement World, Inc., [11] the court held that certain elements are “inextricably associated with the idea of a particular category of video games” and that these elements could not be granted copyright protection. Nonetheless, the case of Tetris Holding, LLC v. Xio Interactive, Inc., [12] dealt with one of the most explicit cases of copying a video game in which the elements like the movement of the objects, playing field dimensions, color changes, and other aesthetic elements were held to be protected as original expressions of an idea; it was termed as a case of ‘wholesale copying’. However, if the similarities are too evident and obvious, then such a video game would not be granted copyright protection. In Atari v. Philips,[13] the Court granted an injunction to stop the sale of the game “K.C. Munchkin!” because of its similarities with “Pac-Man.”
In the same context, however, there are generic elements in video games that fall under the doctrine of scenes fair. This doctrine refers to those kinds of video game elements that are essential to create the video game and convey the idea of the authors, and without the use of such generic elements, the game would be incomplete or meaningless.
Such essential generic elements, artwork, and expressions are not copyrightable.[14] Scenes a fair also applies to certain genres of games. For example, in a football video game, the design elements of the football, goalposts, stadium, and players are necessary.
To examine the similarity between the video games, the US courts have developed the following tests:
1. Subtractive Approach Test – In this test, the court examines the entire video game and then subtracts the elements of the game bit by bit. This approach is used when the video game has both copyrighted material as well as materials from the public domain. It was developed in the case of Nichols v. Universal Pictures,[15] in which the court laid down three steps to ascertain whether there was copyright infringement:
- The video game in question is examined to determine the elements that are protected,
- The unprotected parts are subtracted, and
- Significant similarities are examined between the allegedly infringed video game and the allegedly infringed video game.
2. Total Concept and Feel Approach - In this approach, the court looks at video games as a whole rather than breaking them down into "protected" and "unprotected" aspects. To compare the two video games, the entirety of the work is examined to see if there was a copyright violation.
3. Atari v. North American Philips Consumer Electronics Corp. led to the development of the substantial similarity test. The Court held that although the functions and expressions of the two video games may not be the same in many respects if the parts of the second alleged infringing work are copied completely or partially from the original video game, it is a copyright infringement
4. Abstraction Filtration Comparison Test - This test was laid down in Computer Associates International, Inc. v. Altai, Inc.[16] The test, like the subtractive test before it, lays down 3 steps: Abstraction, that is to ascertain each level of abstraction; Filtration, that is to identify factors at each level that are not deserving of protection and subtract them from consideration; and lastly, Comparison, that is to compare the remaining components for infringement.
Copyright Protection granted to Video Games in Japan
Similar to the Indian and US copyright laws, the Japanese Copyright Act of 1970 does not specifically define or refer to video games. The copyright regime in Japan views computer programs and video games as "works of authorship" entitled to appropriate copyright protection because they can be seen as compositions in which ideas or emotions are expressed creatively and which fall under the literary, scientific, artistic, or musical domains.[17]
In Jараn, the courts have ruled that copying occurs when data is stored in а соmрuter's read-only memory (RОM), and hence illegal copies can be considered copyright breaches. In the same manner, hardware сirсuitry may hold information regarding the software while still being сорyrightаble, and video games can contain аrtistiс expression that is рrоteсted by the copyright laws. Video games are granted stronger protections for copyright as Japan's courts typically put more onuses on plaintiffs in copyright infringement cases to demonstrate similarity, and the fair use allowances tended to be more lax. Similar to the Digital Millennium Copyright Act of the U.S., Japan has amended its copyright laws to prohibit hardware and software anti-circumvention devices.
The Japanese judiciary has recognized video games as “cinematographic works” in accordance with Article 2(3) of the Japanese Copyright Act, as affirmed by the Supreme Court.[18] However, components like programming and computer codes may be protected as literary works. In Taite KK v. Makoto Denshikegye KK., the defendant had created and sold a counterfeit video game. The Yokohama court granted the plaintiff damages on the grounds of copyright infringement.
Conclusion and Suggestions
The exponential development of the video game sector, along with the increase in the usage of computers and the internet, has brought forth into the limelight various issues that question the traditional perspectives in regard to the IP protection granted to artistic and creative expressions as well as the rights of the authors and the stakeholders. In this context, the intellectual property rights regime must adapt to modern requirements so that the rights of the various parties can be protected. Based on the above analysis, it is evident that a video game involves a wide array of elements which include the artwork, the soundtrack, the dialogues, and the overall mixture of the various other elements that ensure that the player has an immersive experience.
In the Indian context, the Copyright Act, of 1957 is inadequate as it fails to grant the requisite protection to video games. To keep up with the advancement of technology, the Act must be amended so that it includes рrоvisiоns that grant explicit рrоteсtiоn to the videо gаmes. Considering that the growth in the usage of the internet has allowed video game developers to cooperate and collaborate, it has become essential that a global IP framework should be adopted that grants requisite protection to video games. The online streaming of video games and e-sports tournaments must also be duly regulated. As such, video games can be granted due copyright protection only when the existing copyright laws are amended so that they take into account the modern issues and challenges posed by video games.
[1] Sameer Barde, ‘Year Ender 2021: It’s game on for online gaming industry, just play it right for regulatory clarity’ available at: <https://www.financialexpress. co m/brandwagon/year-ender-2021-its-game-on-for-onl ine-gaming-industry-just-play-it-right-for-regulatoryclar ity/2389443/> accessed 4 May 2022.
[2] F. Willem Grosheide, Herwin Roerdink and Karianne Thomas, ‘Intellectual property protection for Video Games: A view from the European Union’ (2014) 9 J. Int't Com. L. & Tech. 1, 4.
[3] Thomas Hemnes, ‘Adaptation of Copyright Law to Video Games’ (1982) 131 U. Pa. L. Rev. 171, 174.
[4] Yash Raj, ‘The lacuna in the Indian copyright law vis-a-vis video games’ (2020) NLUJ L. Rev. 112, 115.
[5] Multimedia is a computer based interactive communications process that includes a combination of Writing, sound, image, still images, animation, video, computer software or interactivity content forms, https://ww w.m eity.gov.in/content/copyright`
[6] Civil Suit No. 1725 of 2012.
[7] Shani Shisha, ‘Fairness, Copyright, and Video Games: Hate the Game, Not the Player’ (2020) 31 Fordham Intell. Prop. Media & Ent. L. J. 694, 697.
[8] Joe Linhoff, ‘Video Games and Reverse Engineering: Before and After the Digital Millennium Copyright Act’ (2004) J. on Telecomm. & High Tech. L. 209, 212.
[9] Brown v. Entertainment Merchants Association [2011] 564 U.S. 786.
[10] ibid 786.
[11] [1981] 547 F.Supp. 222 (D. Md.).
[12] [2012] 863 F.Supp.2d 394 (D.N.J.).
[13] [1982] 672 F.2d 607 (7th Cir.).
[14] Kyle Coogan, ‘Let's Play: A Walkthrough of Quarter-Century-Old Copyright Precedent as Applied to Modern Video Games’ (2017) 28 Fordham Intell. Prop. Media & Ent. LJ 381, 382.
[15] [1930] 45 F.2d 119 (2d Cir.).
[16] [1992] 982 F.2d 693 (2d Cir.).
[17] Judith J. Welch and Wayne L. Anderson, ‘Copyright Protection of Computer Software in Japan’ (1991) 11 Comp. L. J. 287, 291.
[18] Case No. H13-ju-952.
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