Copyright of video games

Copyright is a protection of intellectual property that give exclusive right to the author(s) of a creative work. A video game may be protected as a creative work. Whether or not a work is copyrighted, and the duration of the copyright may differ between countries, and may also be limited by country specific exceptions, like the fair use doctrine in the United States.

With the establishment of international intellectual property treaties like the Berne Convention for the Protection of Literary and Artistic Works and the TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights), there have been global standards set for subject matters of protection, but video games are not covered as a category of their own. Instead, the protection of video games relies on interpretations of pre-existing categories.

Earlier, before the TRIPS required member countries to recognize software as copyrightable, software programs were not allowed to be protected directly. After this protection was given to software, video games started to become popular and started to seek protection under this new subject-matter but were either not allowed the same or the protection that was given was very restrictive. Even today the protections given to a video game in various jurisdictions is restricted because, in most countries, multiple copyrights are required to protect different components of a game.

Issues with copyrighting games

Game creation

There are multiple aspects about video game creation that have led to different components of the software being copyrighted separately; some cannot be copyrighted at all because of their existence in the public domain or Creative Commons.

Common assets

There is a plethora of websites which allow creators to 'borrow' assets to implement in-game. The model of granting access and permission to use these assets differs across websites and may range from an upfront payment to a portion of profits (if the assets are used commercially). This is not an issue with large video game publishers (such as EA, Activision, or Sony), but when these self-contained companies create large and detailed worlds, most of the assets they create end up being used only once. This limits the public pool of resources/assets. Assets will often have to be recreated in order to create a new game (or sequel by another company or creator), which is a common complaint of game developers, as it usually costs large amounts of money to create commercially viable assets and makes it difficult for smaller developers to produce games.

Game engines

A game engine is a framework which a developer can use to create games. They consist of a software suite with a multitude of components, such as a rendering engine, audio engine, physics engine, and artificial intelligence. Companies create these engines for the purpose of allowing developers (with or without charge) to create games. However, because of limitations or certain peculiarities of an engine, some designs or passive-background tasks may occur in a particular way for every game made using that engine. This particular feature (regardless of how central it may be to a game) essentially the same in all games created with that engine, which takes it outside the scope of copyright. This reasoning would also apply to games made with the same engine which share source code—this would not constitute copying because the games' similarity is inherent to the tools. Large video game houses/publishers can sidestep this limitation by developing in-house engines.

Producers-developers relation

Classically, publishers had the role of securing (or providing) funding for a game, as well as bearing the losses and in many cases, marketing the game. These expenses were generally large and could run as high as tens of millions of dollars for AAA titles. But, with the advent of the Internet and the rise of indie culture, a new wave of financing and distribution technologies has emerged. Sites like Kickstarter and Indiegogo allow for interested consumers to directly contribute towards game development by purchasing the game in advance. Digital distributors like Steam and GOG.com removed the costly need for the manufacture and distribution of physical game discs. These innovations have allowed the industry to move away from the standard of intellectual property rights resting with the publisher instead of the developers, as "the IP rights that typically vested with publishers may now be shared with a publisher or owned by a developer or an investment vehicle".[1]

Music creators, voice actors and other contributors

Contributions that do not add directly to the code of the game would not be protected by copyrights for literary works, but these components could be covered if an audiovisual copyright is taken out. As for authorship rights, most contributors are employees and hence their work would be considered "work for hire", belonging not to them, but to their employer. Music is generally not created in-house by game developers; since third parties are hired, this may not result in a work for hire. See U.S court case CCNV v. Reid, on the principle work for hire.

Hardware limitations

Some copyrightable elements of a game may be created due to hardware limitations. For example, the classic game Space Invaders, as originally played as an arcade game, got faster as the player killed more of the onscreen aliens, which freed up system resources.[2]

User input

User input is essential component of video games, which are interactive media. Though this may not change the intellectual property rights in the base code of the game, some developers/publishers may restrict the rights of players to broadcast their playthrough of the game. The arguments from the other side are that the output of a game is coming in a particular way due to user input and this can reasonably give a player some restricted rights in his/her play through, also known as a Let's Play.

International standard

The Berne Convention for the Protection of Literary and Artistic Works (The Berne Convention of 1886) is the international treaty which provides the scope for copyright protection of video games. This protection can be drawn from the wide definition of "Literary and Artistic Work" in Article 2 of the Convention, which reads:

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 expression, 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; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.[3][4]

This standard treats the whole game as a singular component but does not define what would be covered by such a protection and what would be excluded. WIPO had recognized the complexity inherent in copyrighting video games, saying: "Although Article 2 of the Berne Convention provides a solid basis for eligibility for protection of video games by copyright, they are in fact complex works of authorship, potentially composed of multiple copyrighted works." WIPO has also stated in one of its reports that "there is no clear classification of video games and their protection will vary depending on each particular game and the elements that are part of it. In this sense, video games can be treated as computer programs and, thus, are classified as works of authorship; in that case, the source code for a video game is classified as a literary work. If pictorial or graphic authorship predominates, a video game may be classified as a visual arts work. Similarly, if motion picture or audiovisual authorship predominates, a video game may be classified as a motion picture/audiovisual work."[5][6]

WIPO has written the following about copyright protection in different countries and jurisdictions: "For some countries, video games are predominantly computer programs, due to the specific nature of the works and their dependency on software. Whereas in other jurisdictions, the complexity of video games implies that they are given a distributive classification. Finally, few countries consider that video games are essentially audiovisual works."[7]

United States

The Copyright Act of 1976, codified at 17 U.S.C. § 102[8] enumerates the requirements of a copyright in the US, but does not use the term. 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.[9] Regarding copyrights for video games, the US Copyright office has stated that "a single registration may be made for a computer program and its screen displays...(and) when answering the 'Type of work being registered' question on the application form, the copyright holder shall choose the type most appropriate to the predominant authorship."[6]

In other words, US Law does not specify a certain protection to be given to a game. The individual(s) registering the game, or their attorneys, must ascertain which category best protect the interests of the author/assignee.

The US Copyright Office specifically states that “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.”

The legal standard for copyright may differ, depending on the circumstances.

Idea/expression dichotomy

The issue of the idea expression dichotomy was discussed in one of the first video game issues to reach litigation, Atari v. Amusement World (1981).[10] The case was resolved a copyright issue between Atari's Asteroids game (plaintiff) and a similar game Meteors (respondent). The court ruled in favor of the respondents, finding that the similarities between the games were limited to the plaintiff's ideas. According to the court the similarities, "were inevitable given the requirements of the idea of a game involving a spaceship combating space rocks and given the technical demands of the medium of a video game."[11]

Within the idea/expression dichotomy are two related concepts that apply to video games. One is the merger doctrine, when the expression becomes inseparable from the idea, then the idea itself can become copyrightable alongside its form of expression. The other is scènes à faire (French for "scenes to be made"), which represents elements in a form of expression that are considered essential or required for the setting or concern, in which case these elements themselves become ineligible for copyright. For example, the necessity of a baseball in a baseball game would be uncopyrightable as a scènes à faire.[12]

Substantial similarity test

In Atari v. North American Philips Consumer Electronics Corp. (1982)[13] the 7th Circuit wrote that "no plagiarist can excuse the wrong by showing how much of his work he did not pirate." This was said in the context of the fact that, "while a game is not protectable by copyright as such, this kind of work of authorship is protectable at least to a limited extent as long as the particular form in which it is expressed provides something new or additional over the idea" and that while two works may not be the same in many regards, if parts/components of the second work or wholly or substantially copied or like the first work, it is copyright infringement.[13]

Subtractive approach test

Nichols v. Universal Pictures laid out the following test for copyrighted material which contains both copyrightable and public domain material. The Case lays down 3 steps to be followed to ascertain copying:

  1. The allegedly infringed work is analyzed to determine the parts that are protected,
  2. The unprotected parts are subtracted, and
  3. The fact finder examines significant similarities between what remains of the allegedly infringed work and the allegedly infringing work.[14]

This Subtractive Approach is the preferred Test by Courts in the US (save the 9th Circuit [14]),

Abstraction-filtration-comparison test

This test, developed in Computer Associates International, Inc. v. Altai, Inc. (1992) was specifically aimed at software infringement and hence is a better fit for what a court is likely to apply with regards video games. The test, like the Subtractive test before it, lays down 3 steps:

  1. Abstraction – Ascertain each level of abstraction.
  2. Filtration – Identify factors at each level that are not deserving of protection (ideas, processes, those dictated by efficiency or required for external compatibility, those taken from the public domain, etc.) and subtract them from consideration.
  3. Comparison – Compare the remaining components for infringement.[14]

The Abstraction-filtration-comparison test was notably used in identify copyright violations in video games in Tetris Holding, LLC v. Xio Interactive, Inc., which was used to find against a clone of Tetris due to substantial similarly in the broad look and feel of the game.[12]

Authorship

In the U.S, corporations can be the author of an audiovisual work, which tends to be the most commonly used classification for a video game. In this case, the hiring corporation, rather than employees or other contributors, would be considered the author. Unlike European Law, which has very strong "Moral Right Protections", moral rights in American law are limited to works of visual arts as defined by Section 101 of the U.S. Copyright Act (Act). This definition excludes "motion pictures or other audiovisual works" or any works made for hire.

There are developments in this field due to the advancement of technology as well. Services like 'Steam Workshop' allows for players to use tools provided by the game developer to add to the game in some manner. Usually, since these players are not employees copyright of their works usually resides with them.

India

The Indian Copyright Act of 1975, does not address video games specifically. Unlike the US, India has not publicly listed under what categorization video game makers should seek protection under. India follows the Anglo-American tradition of allowing corporate persons to hold copyrights.

Applicable law

The Indian law has an exhaustive definition of the phrase "Artistic Work" under Chapter 1, Section 2(c) of the Copyrights Act, which states that Artistic Work is "(i) a painting, a sculpture, a drawing, an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) a work of architecture; and (iii) any other work of artistic craftsmanship."

Due to the specificity of the statute, the law on video games in India has developed more on the basis of business practice. This has led to developers and publishers seeking protection as "cinematograph works". Under Section 2 of the act, a "cinematograph film" means "any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and cinematograph shall be construed as including any work produced by any process analogous to cinematography including video films." The phrase "process analogous to cinematography" has a non-exhaustive list attached, meaning that part of the definition is open-ended enough to allow for video games to be covered, but there is no jurisprudence on this issue.) The law in India does clearly state that a "literary work" includes computer programs[15] and hence by extension, the source code of video games can be protected as software or literary work.

Authorship

Unlike the US, in India, different aspects of a game, like the art, code, gameplay mechanics etc. are copyrightable independently.[16] This understanding is furthered by Section 17 of the Indian Copyright Act which states that the person arranging for all components of a work to come together into a cohesive whole would be the one to hold the copyright in the work, only if all works are created under a contract of service as stated in Section 17 (c):

"In the case of a work made in the course of the author's employment under a contract of service or apprenticeship (...) the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein"

Under this rule, the authorship of creative contributions to a game that are made by individuals outside of the developers/publishers employment reside with the original creator, unless the rights are signed over to the developer.

Contributors

Contributors like musicians and lyricists, having once consented to have their works in a cinematograph work, can no longer restrict or object to the enjoyment of the performer’s rights by the producer but the original author/creator shall retain the right to receive royalties on public/commercial use of his/her work, as per Section 38 A (2) of the Indian Copyright Act.[17] "It is unclear whether this new provision will affect video game authors due to the lack of qualification of this kind of work of authorship; this amendment to the Indian Copyright Act must, therefore, be further interpreted in this context...(it) must be interpreted by Indian courts in order to determine if it will apply to video game contributors and whether they shall have the right to receive royalties for the exploitation of their works."[1]

Test and Remedies

The landmark case for deciding on infringement cases in India is R.G. Anand, which laid out the following test: if "the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original" then the copyright has been infringed.[18]

See also

References
  1. "Video Games and IP: A Global Perspective". www.wipo.int. Retrieved 2017-05-04.
  2. Good, Owen. "Space Invaders' Creator Says He Would Have Made It 'Far Easier'". Kotaku. Retrieved 2017-05-04.
  3. "BERNE CONVENTION, AS REVISED - Article 2". www.law.cornell.edu. Retrieved 2017-05-04.
  4. "Berne Convention for the Protection of Literary and Artistic Works". www.wipo.int. Retrieved 2017-05-04.
  5. "The Legal Status of Video Games: Comparative Analysis in National Approaches". WIPO: Comparative Analysis in National Approaches: 89.
  6. "Copyright Registration for Computer Programs" (PDF).
  7. "Video Games". www.wipo.int. Retrieved 2017-05-07.
  8. "Chapter 1 - Circular 92 | U.S. Copyright Office". www.copyright.gov.
  9. Circuit., United States Court of Appeals,Third (1982-08-02). "685 F2d 870 Williams Electronics Inc v. Arctic International Inc". F2d (685). Cite journal requires |journal= (help)
  10. Appeals, United States Court of; Circuit, Seventh (January 19, 1982). "672 F2d 607 Atari Inc v. North American Philips Consumer Electronics Corp". F2d (672): 607 – via openjurist.org. Cite journal requires |journal= (help)
  11. "Atari, Inc. v. Amusement World, Inc., 547 F. Supp. 222 (D. Md. 1981)". Justia Law. Retrieved 2017-05-05.
  12. Lampros, Nicholas M. (2013). "Leveling Pains: Clone Gaming And The Changing Dynamics Of An Industry" (PDF). Berkeley Technology Law Journal. 28: 743–774. Archived (PDF) from the original on July 28, 2020. Retrieved January 19, 2021.
  13. "Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982)". Justia Law. Retrieved 2017-05-05.
  14. "Copyright Protection Generally". www.unc.edu. Retrieved 2017-05-06.
  15. Chapter 1, Section 2(o) of the Indian Copyright Act: "literary work includes computer programmes, tables, and compilations including computer databases."
  16. Rawandale, C. J., Ryder, R. & ASSOCHAM (2011) “Creating Virtual Wealth: Importance of Intellectual Property in the Animation & Gaming Industry"
  17. "THE COPYRIGHT (AMENDMENT) BILL, 2012" (PDF).
  18. "Copyright Protection For Computer Software An Indian Prospective - Intellectual Property - India". www.mondaq.com. Retrieved 2017-05-07.
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