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Protecting Play: The Legal Architecture of Intellectual Property in Indian Video Gaming

  • 2 hours ago
  • 8 min read

Introduction


Today's gaming is no longer just for children; it has also become a global, $522 billion business. Gaming's rank as one of the preferred leisure activities by many people of all ages represents an explosion of digital leisure activities in the age of technology. Over the last five years, the e-Sport and mobile gaming markets have captured a substantial market share of the entertainment segment. Gaming became a profitable industry in the mid-1990s, and since then, it has increased rapidly after 2000. Since 2000, India has had a tremendous increase in its digital gaming sector.


The Indian gaming industry continues to expand rapidly and is projected to earn nearly $9.1 billion (9000 Crore) by the 2028-29 financial year. In the FY 2024 financial year, India's digital gaming industry was $3.8 billion (3800 Crore), which is an increase of 23% from the previous year. India also leads other large mobile gaming nations, such as the USA and Brazil, with over 20% more mobile downloads than any of those countries. Ninety (90%) per cent of the games downloaded by users in India are mobile games, compared to just thirty-seven (37%) per cent in the USA and sixty-two (62%) per cent in China.


To sustain this rapid development, the government of India has created several initiatives aimed at regulating its gaming industry, including the establishment of Self-Regulating Bodies (SRB) as outlined in the Information Technology Rules of 2023. Such initiatives are meant to achieve a balance between innovation and regulation. Intellectual Property Rights (IPRs) are an important tool for protecting the creative works of developers within the evolving landscape of the gaming industry; they also facilitate financing for investment in the sector and provide game developers with the ability to establish competitive advantages over time.


Understanding Intellectual Property Rights


Intellectual Property Rights (IPR) are laws that give creators or authors the ability to control how their creations are used, marketed and sold without their express permission. In a nutshell, by recognising the rights of creators in this way, the IPR system assures that the creator retains control over all aspects of their work for a certain amount of time after they create it.


For video game developers, IPR provides a way to make money from what they've created as well as a way to secure their creations from people trying to copy them illegally and also to build a brand that represents their work. Since video games contain many different kinds of creative (e.g., the characters and storyline) and technical (e.g., computer code and graphics) elements, a developer can combine the different types of IPR that exist into a complete legal protection scheme for all the various elements contained in a video game.


The types of Intellectual Property Rights that are primarily utilised in the video game industry are:


  • Copyrights

  • Trademarks

  • Patents

  • Trade Secrets


All four of these forms of intellectual property rights support the overall legal structure necessary to protect an original piece of creative expression and the innovative technology used to create it.



Need for Intellectual Property Rights in Gaming


The video game industry is built on a foundation that includes originality, creativity, and advances in technology. Although there is currently no specific regulatory framework in India that regulates video games exclusively, the various elements that make up video games are protected by existing intellectual property laws. The protection of intellectual property (IP) to an extent serves as a basis for providing legal protection for gaming content, allowing developers to maintain ownership of their IP and to gain the rewards associated with creating something new and innovative.


Copyright Protection in Video Games


Copyright in India protects video games just like it protects other types of "Creative Works" as defined under the Copyright Act of 1957. Copyright will be granted to all softwares and video games are created with the aid of those softwares therefore they will have copyright for all video games. Various elements of a Video Game will be protected under the Copyright Law at different levels of copyright protection, as specified in Section 14 of the Copyright Act, 1957.


The following elements of a Video Game may receive Copyright protection:


  • The Plot and Plot Structure of a Video Game

  • Characters (Visually & Artistically) in a Video Game

  • Music and Sound Effects used in a Video Game

  • Visual Elements / Graphics of a Video Game

  • Segments of Source Code


Thus, as per the above definitions, each Video Game is also defined as a "Creative Work." According to Article 2 of the Berne Convention, Video Games are protected under the Copyright Act of 1957.


The Copyright (Amendment) Act of 1994 extended the copyright protection of computer programs to include copyrighting video games as well. The law states that, under copyright law, the author of any work made with a computer program is also the author of the program itself. Consequently, a Video Game Developer is, therefore, the creator of the Programming Language used to develop the Video Game and the original Source Code of that Video Game.

As a result, Copyright Owners of Computer Programs can protect both their Computer Programs and Literary Works through copyright.


Copyrightable Content of Video Games in India


The types of content we think of under the gaming umbrella consist of Audio, Visual and Technical (software) components.


1. Audio: Basically, audio is how we hear video games performed. Audio includes voice acting, background music and sound effects. These audio elements create an environment for enjoyment, and therefore, they contribute to the overall experience associated with playing a video game.


2. Visual: Visuals (graphics) refer to everything we see on our screen while playing video games. All of the graphics we see and/or use while playing are visual elements. Character animations, interfaces and written instructions are examples of visuals in video games.


3. Technical (Software): Technical components of a video game are the programs used to write the code necessary to create the game, including the programming language, game engine and ancillary programs that assist in executing the video game.

 

Each of these three components receives separate protection under copyright law, so the entire video game as a complete work is protected by copyright.


Trademarks in the Gaming Industry


Trademarks help solidify a game's identity by protecting its name, logo, symbol, tagline and other branding elements. Trademark registration under the Trade Marks Act, 1999, gives you exclusive use rights for 10 years, and these rights can be renewed after the initial 10-year period.


Within the gaming industry, trademarks continue to provide trust and loyalty amongst gamers, while also differentiating products from other competing products. Trademarked terms or names and logos help consumers remember what they played and develop brand loyalty, and thus are an important commercial asset.


For example, Dream11's logo is a registered trademark, which provides the company that owns this logo exclusive rights to the logo. Strong taglines like "Ab Jeetega India" (Dream11) and "India ka Apna Game" (Ludo King) create strong associations with a company's brand image. Gaming companies can also trademark fictitious characters from their games, enabling them to utilize these characters in their games exclusively commercially.


Trademark Registration and Enforcement


Through Trademark Registration, Trademark Owners can better protect their rights under the law from infringement. In the Video Game Industry, disputes typically occur from:


  • Clone Video Games

  • Deceptively Similar Application Names

  • Unauthorised Merchandise Items


Because of the ongoing nature of the mobile gaming industry, Trademark protection is especially important due to undifferentiated Games that are trying to take advantage of the goodwill generated by the successful Title.


Patents and Technological Innovation in Gaming


According to the Indian Patents Act, 1970, a patent is granted to new and inventive technological solutions only if the patent satisfies the elements of novelty, inventive step, and industrial applicability.


To secure a patent for a gaming-related invention in India, special consideration must be given to Sections 3(k) and 3(m) of the Act.


Section 3(k) prohibits the patenting of computer programs per se, algorithms, and mathematical methods. As so much of online gaming relies on software, AI and algorithms, many inventive solutions for gaming-related innovations will be rejected by the Patents Office due to this provision.


To overcome this obstacle, inventors will need to demonstrate that their inventions achieve a technical effect, such as lower latency, higher ability to process data, greater visual fidelity or increased security of their systems. Examples of such inventions are server-side algorithms that reduce latency for players in a multiplayer game or new methods of encrypting in-game transactions.


To increase the likelihood of receiving a patent, it is often beneficial to include physical devices in product descriptions. An example of a technological system would be using VR goggles, motion-sensing technology, haptic technology (meaning touch), or custom-built controls and software using one or multiple devices.


Section 3(m) of the Patents and Trademarks Act excludes "methods of playing games, rules for playing games and mental acts". This provision restricts the ability to patent gameplay mechanics and scoring systems, and applicants seeking to avoid this restriction will need to emphasise the technical aspects of how they implement their patent application instead of focussing on gameplay rules.


Trade Secrets in the Gaming Industry


Trade secrets are a unique and important part of intellectual property rights (IPRs) for the games industry that many people do not understand, as some do not know that trade secrets exist or how the protection can provide a competitive advantage. Trade secrets give companies an advantage over their competitors by providing them with knowledge about how the company performs various functions, such as how to develop game mechanics, how to develop characters, and how to develop algorithms. Trade secrets, unlike Patents, do not require registration for protection in India. Companies may utilise Contracts (i.e., Non-Disclosure Agreements) to protect their Trade Secrets.


Gaming companies have multiple options to protect their proprietary information, including:


  • Non-Disclosure Agreement(s) (NDAs)

  • Restricting access to certain Confidential Information

  • Inclusion of Confidentiality Clauses within Employee Contracts

  • System logs and Version Control Systems (for tracking unauthorised access to proprietary         information)


Thus, through the above methods of protection, companies can ensure they retain private information.


Conclusion


The Indian Gaming Industry exists at the convergence point of creativity, technology and commerce. As the Indian Gaming Industry experiences phenomenal growth, Intellectual Property Rights (IPR) are crucial to support innovation, protect the creators and inspire investor confidence within the industry. Copyrights protect creative ideas, trademarks protect brand identity, patents protect technologies, and trade secrets protect proprietary business information.


There is currently no Gaming-specific legal framework in place to protect Gaming Assets, however the existing IPR Laws provide a good basis for protecting gaming assets. Developers and other participants in the industry must take a systematic and informed approach to the protection of intellectual property (IP) to take full advantage of the industry's growth.


As India becomes a world leader in gaming, an effective and adaptable IPR infrastructure will help to define the future of the gaming ecosystem.


Author: Tanvi Gupta, 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.


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