The gaming industry has evolved into one of the most lucrative and dynamic sectors of the global economy. With billions of players worldwide and annual revenues that exceed even those of the film industry, video games have become more than just a form of entertainment; they are a cultural force. However, like any other creative medium, video games are subject to the complexities of intellectual property (IP) law, especially copyright.
The Basics of Copyright in the Gaming Industry
Before delving into specific problems related to copyright in the world of computer games, it is important to go through some foundations here: what is copyright? Copyright law refers to a category of intellectual property law that gives a creator the exclusive right to his original works, including the right of reproduction, distribution, performance, and creation of derivative works. Each of these components: code, art, music, and narrative within the game is protected under copyright.
In the context of games, copyright protects:
- Game Code: The software that powers the game, including its algorithms, mechanics, and scripting.
- Art Assets: Visual elements such as character designs, environment artwork, textures, and animations.
- Audio: Sound effects, voiceovers, and music.
- Story and Narrative: Scripts, dialogue, and plot.
- Game Design: While certain elements of game design (like mechanics and systems) may not be fully protected under copyright, unique designs and concepts can be covered, especially if they include creative expression.
Game developers then rely principally on copyright as protection against copying, distribution, or exploitation of their creations-by any other party, without their permission. Digital and interactive video games, however, present some unique challenges when it comes to enforcing and protecting one’s creative endeavors.
Challenges in Protecting Video Game Copyrights
Modding and Fan Creations
Creation of mods and fan-made content constitutes the other competing challenge in this area of the gaming world. However, mods, which alter or add on to games in many forms, have also entered the hearts of gamers, new levels and characters through to a totally different gaming experience. Some developers entirely embrace this form of community engagement for their benefit (like, for instance, Minecraft), while others take the view with hostility out of fear that it might infringe their copyrights.
The question arises: can these mods infringe on copyright? In many cases, they do. The modders most commonly use the assets directly from the game (be they textures, models, or code) without permission. But here comes the opening of the legal gray area. Some mods are transformative, adding something unique or creating a completely different experience, which can save certain elements from fair use. Though some mods are, in essence, merely taking existing content that might infringe upon the copyrights held by the developer of the original game.
At stake is the balance between the desire to protect intellectual property and ensuring a community is allowed to create and share content-making that promotes the game, often for free. The legal environment remains circumspect, and hence game developers must now catch the conversation between engagement with fans and exposure to intellectual property infringement.
Piracy and Illegal Distribution
The second most important concern for game developers is piracy. Piracy in the gaming world is the illegal distribution and downloading of games from torrent sites or other forms of unauthorized file-sharing. This stands as a huge blow for developers, especially the independent ones, because they really have nowhere else to go for sustenance except through the sale of games. Simply, piracy is not taking money out of someone’s pocket-everyone should view it as an opportunity cost; rather, it’s defying the chance of creators in investing in future projects. Copyright enforcement against pirates is tricky as usually these platforms originate from different countries and therefore would also have differing systems of IP repression. Cloud gaming and game streaming platforms offer additional hurdles of how game files are owned and controlled.
Digital forms have made it quite easy to duplicate and distribute video games, and although the industry is now armed with several anti-piracy technologies in DRM, many pirated copies circulate freely. Bringing a copyright infringement case against pirates is complicated, considering how often these platforms are in different countries and regulated under different standards of IP enforcement. Furthermore, the rise of cloud gaming and game streaming services issues further complications on ownership and how that ownership is invoked on game files.
Copyright and Game Mechanics
An interesting challenge in videogame is how to protect its mechanics and system. Though copyrighting code, art, and even stories is one thing; it is harder to protect game mechanics-the rules and systems that govern the gameplay. Copyright almost never protects abstract ideas or functional systems, so such systems may not be protected from outright copying; the battle system in an RPG is an example of a game mechanic not protected by copyright in itself.
Certain expressions of those mechanics, such as a particular code implementation or visual representation, are, however, protectable. The above has led to an upsurge in lawsuits between game developers over the copying of game mechanics. A prominent example is that of Candy Crush Saga versus The Banner Saga, where the creators of Candy Crush accused its developers of copying gameplay mechanics. Game mechanics may not, as a rule, be protected, while the visuals and sound of such mechanics can be copyrighted.
This highlights the fine line between inspiration and infringement in the gaming industry. Game developers continuously build upon each other’s ideas, but it can be hard to ascertain where inspiration stops and piracy starts.
Cross-Border Enforcement
The existence of games and their world distribution remains relatively unequal among countries with changing eras of self-control. A game is copyrighted in one country however pirated and presented free in another. This is a major hassle for the game developer in regaining international brotherly love for their intellectual property.
Besides some efforts to unify copyright protections via international treaties, such as the Berne Convention, enforcement issues remain monumental. For instance, some game developers might have to bear a considerable challenge when trying to sue in countries with no support for copyright issues, mainly in countries in Eastern Europe and parts of Asia. In these instances, developers typically resort to DMCA takedown notices, appeal for intervention from local law enforcement, or seek to hire third-party services focused on going after the wrong-doers in such situations.
Protecting Video Game Copyrights: Best Practices for Developers
Given the challenges outlined above, game developers must take proactive steps to protect their intellectual property. Here are some best practices:
- Register Copyrights: Although copyright protection comes into play automatically and instantly, registering the game with the relevant copyright office can render additional legal benefits, such as suing for statutory damages and attorneys’ fees.
- Make Use of Licenses and Terms of Service: Developers should outline the considerations they need players to adhere to, including modding, sharing, or distributing content. Licensing agreements can provide further protection for user-generated context and clarify what is and is not allowed.
- Monitor for Piracy: The use of services that scour the Internet for pirated copies of games can facilitate informing about infringements early on. These can be automated tools that monitor the World Wide Web for illegal downloads or unauthorized streaming, permitting developers to establish takedown requests or collaborate with authorities.
- Develop a Modding Community: While mods can create potential copyright problems, encouraging fan-made content can be a great way to foster community support. Developers can give out modding tools, or set binding guidelines through which the community can exercise their creations so as not to infringe on the core IP of the game.
- World-Wide Protection: Registering for copyrights and trademarks in multiple countries will be instrumental in granting developers global rights. Developers should also seek to have legal advice on the more prudent approach to tackling piracy, especially in countries where enforcement of IP is very weak.
The game industry is always in the throes of growth and innovation, and the need for strong copyright protection evermore critical. Developers must balance on a razor’s edge between protecting their creative assets and building a fan community that promotes engagement and creativity. With suitable legal tools, strategies, and an understanding of the unique challenges in the gaming space, developers protect their creations, create a space where their work is respected, and earn fair shares of skin and reward.
Author: Charu Gyanchandani, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.