IP PROTECTION FOR VIDEO GAMES

INTRODUCTION

The gaming industry market in India is valued at $1.8 billion and is growing at a rate of 38%. In India, 275+ gaming companies are present, and more than 15,000 game developers are present. India in near future can capture 5% of the global market share in the animation, gaming sector by 2025 and which will create 1.60 lakh new jobs.[1]A video game is an electronic game that is played on a screen and had a storyline with audio-visual apparatus which make it more interesting to play. But there is always a chance prevails where a third person who is not the originator of the game may copy the audio, visuals, design, storyline, characters, and colour, of the game and by which the originator suffers losses. In India, we currently don’t have legislation that protects specifically the IP rights of video games.[2]

HOW INFRINGEMENT OF IP OF VIDEO GAMES HAPPEN

The intellectual Property Rights of video games are infringed by applying the reverse engineering technique which is a process by which the source code of the game can be found and then they extract the desired parts from the game using software or manually inserting parts in a game. By this, the offender referring to a video game make a similar game himself.[3]By copying the design, colour, character, and name of the game. Using the same trademark which confuses the gamers because they don’t know which one is original. Without license selling the games and now UGC has come which had raised a new question about the IP Protection of video games where a user enters new things in the game and the Intellectual Property of the developer is involved. By using these types of tactics, the Intellectual Property Rights of a video game are being violated.

HOW IP RIGHTS OF VIDEO GAMES CAN BE PROTECTED

The IP rights of video games can be protected by first of all making legislation and specifying the ways it can be infringed and what are the protection and what will be the punishment for this. But as of today in India, we don’t have legislation for the protection of IP rights of Video games, and therefore till then the IP rights of a game can only be protected by Patents, Copyright, and trademarks, laws and also it is not specifically defined under these laws but under some sections, of these laws, they can get protection.

PATENTS

The patent is given for the invention that is original and gives the right to the owner to use it. In the case of video games, the patent can be taken for the game controllers to a microchip that powers a console and all the physical devices that make the game unique from other video games. Nowadays, with the advancement in technologies people illegally copy or distribute the content of the creators. Which leads to losses that creators have to suffer. To solve this problem video games developer use software that is made of a sequence of digital protections which are called Technological Protection Measures[4] by this software the video game developers protect their content.[5] In the case of Magnavox Co. vs. Activision, Inc.[6]there was a case of infringement of Patent. In this case, the question raised was that Magnavox had developed a game console that can be played by two players and in which they can spring a white dot ball to move ahead and back which looks like a digital ping-pong. The Magnavox company took a patent over this. The Activision games of the 1980s also had a similar format as of Magnavox game which was identical to the Magnavox game patent. The court held Activision liable and later Magnavox enforce its patent against every virtual game that uses a ball and paddle format.

TRADEMARK

The trademark distinguished various components of a video game. It can be a word, letter, device, name, logos, or characters in the game. In absence of Trademark protection, users will fail to identify the original game and will fail to identify the originality of the device which they are using. For this take the example when you open the Play Store and search for Subway Surfers and see thousands of logos that are similar. Finding from these thousands of logos the original one becomes difficult. In the ESS Entertainment 2000 vs. Rock Star,[7] in this case, the Rock Star develop a game name brand Theft Auto: San Andreas’ in which a city by the name ‘Los Santos’ is shown which is very much similar to Los Angeles. In Los Angeles, there is a club by the name Play Pen Gentleman’s Club which is run by ESS entertainment company.

Drawing inspiration from this in the game also there is a place by the name ‘Pig Pen’ with an identical sign. The court in this case applies the Rogers vs. Grimaldi[8] test. It is a two-pronged test that states that the use of a trademark for artistic work is not an infringement “unless or until there is no artistic connection is present to the work of the trademark the use of the mark has no artistic connection to the underlying work at all, or unless it misleads in finding the source of content’s work.”[9]Based on this test, the court concluded that no such confusion existed in the present case and no infringement took place.

COPYRIGHT

Video games don’t have explicit protection under the Copyright act but get protection under the realm of literary and artistic works. Under Section 14[10] and 57[11] of the Copyright Act, it provides economic and moral rights protection to the artistic works of the developer. Under the TRIPS agreement which is an agreement between World Trade Organisation members. This agreement talks about the Intellectual Property Rights of the creator’s works and how to protect them. In this agreement Article 11[12] talks about the Rental Rights which are available to the developer and it is the responsibility of the member nation to see that it is not violated by copying the content and which leads to the loss of the developer.[13] As India is also a member of this it is also binding on India. Audio-visuals are also protected under copyright law; however, video games are not explicitly protected. In Atari vs. North America,[14]in the present case, the question that emerge was whether North America has infringed Atari’s copyright in the game ‘Pac-Man’. To this, the court held that “video games are not protected under the copyright but are protectable up to a limited extent insofar as the particular form in which it is expressed provides something new idea.”[15] The court taking into consideration the above-stated case issued a preliminary injunction against North America to stop it from infringing the copyright of Atari.

CASES IN INDIA AND OTHER COUNTRIES

  1. Sony vs. Harmeet Singh and Ors.[16]

In this case, Sony created a console called the Play Station 3 as well as video games for it. The defendant tampered with the system and installed a pirated version of Sony’s game. The name of the software which help them to do this thing was ‘Jailbreak’ which enables players to play pirated games. For this, the defendant charged a small amount of money from the customer and even also bring the original game and distribute the same.[17]Mr. Singh was then issued an ex parte injunction barring him from duplicating, selling, offering for sale, distributing, changing the consoles’ processor unit, and counterfeit copies of Sony software programs/games, all of which were copyright infringements.[18]

  1. Bissoon Dath vs. Sony Computer Entertainment America, Inc.[19]

In this case, the issue was that the Bissoon Dath filed the case against Sony on the allegations that they have found similarities in the plot, theme, dialogue, and very general characters which the Sony has used in the game ‘God of War’ which the plaintiff say they have copied from their games. To this the court dismissed the video game allegations of copyright infringement, stating that it could only uphold the allegation of infringement if a significant portion of one game was copied from another game.[20]

WHAT ABOUT THE NEW INVENTION THAT IS: USER-GENERATED CONTENT (UGC)?

Video games today inspire players to make and share their own User Generated Content (UGC). UGC can comprise many things like fan art, modifications in video game features, new characters, stories, and objects.[21]This sharing that happens takes place on the platform which is connected to the game or which belongs to the developer or using a third-party platform and this can also be shared within the game itself. But this also raises legal problems for both the player and the developer. For players, they have to abide by the end-user license agreement of the game.[22] Developers have to make regulations taking into consideration that no unlawful or undesirable thing is being shared on their platform. The main issue linked with UGC is the potential threat of infringement of the intellectual property rights of others developers. Because gamers by using the UGC mix the IP protected content of other video games and infringe their IP right.[23] As was seen in the case of Sony which was constrained by Nintendo to take away the UGC which shows Nintendo’s renowned character Mario in the Sony computer game Dreams.[24]

CONCLUSION

With intellectual property laws in place, gaming innovation and accessibility are on the rise. However, without intellectual property rights, the game would most likely be over.[25]The IP protection of a video game is a challenge when there are no laws present. But as soon as possible the lawmakers should recognise that the creativity that is required to make video games needs to be protected so that the creators can know the legal problem beforehand.[26]Therefore, there is an urgent need to amend the above-stated laws and bring an explicit provision for the protection of video games. International law protection is the need of the hour for the protection of the video game industry and to this, the WIPO study[27] has also agreed.[28]Therefore, we hope to see new laws protecting video games IP in near future.

Author(s) Name: Sayyam Jain (Institute of Law, Nirma University, Ahmedabad)

References:

[1] <https://www.investindia.gov.in/sector/media/gaming#:~:text=Segments%20of%20digital%20games%20and%20sports%20in%20India,estimated%20to%20have%20over%2017%20million%20esports%20user?msclkid=d7c4ad12c75811ecafd41088ada3e074> accessed 1 June 2022

[2] Amey Jadhav, ‘Copyright Act, 1957 and Video Games’ (Khurana & Khurana Advocates and IP Attorneys, 2 December 2021) <https://www.khuranaandkhurana.com/2021/12/02/copyright-act-1957-and-video-games/> accessed 1 June 2022

[3] Juanda Maria Angelia Yolesa, Annisa Mayu Mulia & Camellia Anand, ‘Copyright Protection of Video Game for Game Developer in Indonesia’ (2019) 2 Notaire, 213

[4] <Technological Protection Measures (TPM) – Fact Sheet | SFU Library> accessed 2 June 2022

[5] Frank W. Culler Jr., ‘Game On: How IP Helps the Video Game Industry Level Up’ (IP WatchDog, 16 June 2021) <https://www.ipwatchdog.com/2021/06/16/game-ip-helps-video-game-industry-level/id=134628/> accessed 2 June 2022

[6] Magnavox Co. vs. Activision, Inc 848 F.2d 1244 (May 09, 1988)

[7]E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1097 (9th Cir. 2008)

[8]Rogers v. Grimaldi, 875 F.2d 994, 999 (2nd Cir. 1989)

[9]Rogers, 875 F.2d at 999

[10] The Copyright Act, 1957, s 14

[11] The Copyright Act, 1957, s 57

[12] <WTO | intellectual property (TRIPS) – agreement text – standards> accessed 2 June 2022

[13]Trade-Related Aspects of Intellectual Property Rights, Art. 11

[14] Atari vs. North America 672 F.2d 607 (7th Cir. 1982)

[15]<The History of Video Game IP: A Challenging Level of Law – Banner Witcoff> accessed 2 June 2022

[16] Sony vs. Harmeet Singh and Ors 2012 (51) PTC 419 (Del)

[17] Vrinda Seghal, ‘Copyright Protection for Video Games in India’ (Chadha & Chadha IP, 31 December 2021) <Copyright Protection for Video Games in India (candcip.com)> accessed 2 June 2022

[18] Amey Jadhav, ‘Copyright Act, 1957 and Video Games’ (Khurana & Khurana Advocates and IP Attorneys, 2 December 2021) <https://www.khuranaandkhurana.com/2021/12/02/copyright-act-1957-and-video-games/> accessed 2 June 2022

[19]Bissoon-Dath v. Sony Computer Entertainment America, Inc., 694 F. Supp. 2d 1071 (N.D. Cal. 2010)

[20]Yash Raj, ‘The Lacuna in the Indian Copyright vis-a-vis Video Games’ (NLUJ Law Review, 3 June 2020) <www.nlujlawreview.in/the-lacuna-in-the-indian-copyright-law-vis-a-vis-video-games/> accessed 2 June 2022

[21] Anna Piechowka, ‘When Video Games meet IP Law’ (WIPO Magazine, 2 June 2021) <https://www.wipo.int/wipo_magazine/en/2021/02/article_0002.html> accessed 2 June 2022

[22] Anna Piechowka (n 21)

[23] Anna Piechowka (n 21)

[24]<https://spicyip.com/2020/06/video-games-user-generated-content-and-copyright.html> accessed 2 June 2022

[25] Frank W. Culler Jr., ‘Game On: How IP Helps the Video Game Industry Level Up’ (IP WatchDog, 16 June 2021) <https://www.ipwatchdog.com/2021/06/16/game-ip-helps-video-game-industry-level/id=134628/> accessed 2 June 2022

[26] Anna Piechowka (n 21)

[27] <video_games.pdf (wipo.int)> accessed 2 June 2022

[28] Yash Raj, ‘The Lacuna in the Indian Copyright vis-a-vis Video Games’ (NLUJ Law Review, 3 June 2020) <www.nlujlawreview.in/the-lacuna-in-the-indian-copyright-law-vis-a-vis-video-games/> accessed 2 June 2022