The advent of technology and development of computers has led to the inception of certain prominent industries that would have otherwise been unforeseeable. Amongst them is the upsurge of the high-flying video games industry (“Industry”). This Industry has efficaciously established itself and has been developing exponentially since the release of the first commercially successful game, Pong by Atari in 1972. The Industry’s growth has further escalated in the past decade with the rise of mobile gaming. The overall revenue of the Industry stands at a whopping $120.1 billion in 2019. These numbers are expected to grow at an unprecedented rate since the current COVID-19 pandemic has forced the entire world to stay at home and engage in leisure activities. The Industry, therefore, is expected to see a huge boost in its growth despite the global economic slowdown. Many companies have recognized this and have accordingly invested heavily for its expansion.
With the introduction of faster internet facilities and availability of cheaper smartphones, mobile games have become quite popular amongst the younger generation. Consequently, the Indian gaming industry accounted for revenues aggregating up to a total of $890 million in 2017 and is expected to be worth $1.1 billion in 2020. The rise in the Industry has raised many issues, especially related to protecting the intellectual property rights of the developers and publishers of video games. Although the industry has different types of intellectual property rights involved, such as trademark protection over titles and logos as well as patent protection over gaming hardware, the protection of video games through copyright is of prime concern. This is because copyright protects the greatest number of works associated with the Industry. Video games involve an amalgamation of complex and cross-cutting technologies. Nevertheless, a video game mainly comprises of two parts – first, the software element, i.e., computer codes, and second, the audio-visual elements.
The status quo
At present, there is no specific legal mechanism to protect video games in India. Due to lack of jurisprudence on the matter, the application of copyright laws seems to be the only reasonable form of protection available and the same has been employed as the business practice of the Industry. Protection of video games through copyright can be strongly based on Article 2 of the Berne Convention for the Protection of Literary and Artistic Works which provides for the different types of works protected as copyright. The Copyright Act, 1957 (“the Act”) does not expressly provide for protection of video games, however, the different components of a video game can be protected under different work heads such as literary, artistic, musical, cinematograph film, etc. as provided under Section 14 of the Act. In the absence of certainties due to lack of judicial precedents, the only relief for the developers and publishers of video games is that Ministry of Electronics and Information Technology (“MEITY”) acknowledges the copyright protection of video games under the head of ‘multimedia products’. It defines multimedia as “a computer based interactive communications process that includes a combination of writing, sound, image, still images, animation, video, computer software or interactivity content forms” and provides that as multimedia is a combination of various components. Therefore, copyright protection can be accorded under different classes of work. The animation/video elements of video games have been explicitly mentioned by MEITY for being eligible for protection under the cinematograph film segment. However, further clarity is needed in regard to the various elements eligible for protection under the different heads.
Filling the legislative lacuna
In the absence of a specific legal framework and in order to fill the legislative lacuna, the Act can be accordingly adapted to protect the different aspects of video games. There are some prominent aspects of a video game which can be accorded copyright protection. These include the characters in the game, the gameplay, the background score, the artwork and visual design, the cut-scenes and the game codes.
For instance, Mario Bros. as a video game can be copyrighted by conferring protection to the different elements involved. Characters of game such as Mario, Luigi and Princess Peach, may be granted copyright protection as artistic work under Section 14(c) of the Act along with the merchandising rights of the character. The gameplay includes the story, plot, levels, objectives, etc. based on which a player progresses in a game and consequently, it can be protected as a literary work under Section 14(a) of the Act. For instance, the gameplay in Mario Bros. requires players to defeat enemies by jumping on them and kicking them so as to save Princess Peach from the dragon. The music and soundtracks involved in games, such as the Mario theme song, can be protected as musical works and sound recordings under Section 14(a) and 14(e) of the Act respectively. This protection can even be extended to the dialogues of various characters which have been prominent in most of the modern video games like Call of Duty, GTA, Assassin’s Creed and others. The artwork and visual designs, such as the pipes and bricks in Mario Bros., are the graphical aspects of games and can be protected as artistic work under Section 14(c) of the Act. However, as per the doctrine of scène à faire (NRI Film Production Associates (P) Ltd. v. Twentieth Century Fox Films Corporation & Anr., ¶ 22) protection cannot be extended to some general essential elements involved in games of a particular category. Cut-scenes, one of the most common features of modern video games like Metal Gear and Final Fantasy, are basically short-movies displayed to players to show the progress of the storyline and can be protected as cinematograph films under Section 14(d) of the Act. Game-code is the most essential element underlying a game which determines as well as triggers the different aspects involved accordingly. It consists of game engines and software codes and can be protected as computer programs under Section 14(b) of the Act.
Therefore, a video game, which is categorized as a multimedia product, comprises of various elements and consequently, each of its element can be protected as a different work as provided under the Act. Nevertheless, amidst the rising concerns and the legislative ambiguity, a sui generis legal framework must be implemented so as to protect the interests of the publishers, developers and other stakeholders involved.
Rising concerns and judicial precedents
In India, the only substantial ruling on copyright in video games has been in the case of Sony Computer Entertainment Europe Ltd. v. Harmeet Singh. The Delhi High Court passed an interim injunction against defendants for copyright infringement as provided under Section 65A of the Act for circumvention of a technological protection measure to modify PlayStation consoles to enable pirated games as well as sale of pirated games without requisite license.
Although there is a lack of substantial jurisprudence in India, there are a catena of cases in the American jurisprudence, where video games have even been equated with other conventional forms of artistic media; they can be a guiding light in case of uncertainties as well as for the evolution of gaming laws in India. In Atari, Inc. v. Amusement World, Inc., one of the earliest cases involving video games that dealt with the concept of idea/expression dichotomy, the court rejected the copyright claim by holding that there are certain forms of expression that are inextricably associated with the idea of a particular category of video games. Nonetheless, in Tetris Holding, LLC v. Xio Interactive, Inc., one of the most explicit copying case of a video game, copying of features such as movement, playing field dimensions, color changes, and other aesthetic elements was held to be protected as original expressions of an idea; it was termed as a case of ‘wholesale copying’. However, in the case of Bissoon-Dath v. Sony Computer Entertainment America, Inc., where there was some degree of similarity in the plot, theme, dialogue, characters, etc. at an extremely generalized level, the court rejected the copyright claim in the video game. Copyright infringement claims have been upheld by the court only when a substantial part of a game has been lifted to make another game.
One of the rising concerns for developers and publishers of video games is the creation of derivative works such as cheat tools and modifications. A derivative work is a work based on or derived from one or more pre-existing works and considered copyright infringement. Courts have generally taken a mixed approach towards such cases (MDY Industries, LLC v. Blizzard Entertainment, Inc.). In a case where a third-party add-on product was sold for a console, the court allowed such sale holding that altered game content did not constitute derivative work (Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.). However, narrowing the scope of the above verdict, the court in Micro Star v. FormGen Inc., upheld the copyright claim of a developer who had provided users a level creator and the infringer’s sale of collection of such levels was held to be derivative work. In a recent 2019 case of Take-Two Interactive Software, Inc. v. Perez, where the copyright claim was made against an infringing program which created new features and elements in the GTA V game, the court allowed the claim and awarded damages.
The development of open-world and online multiplayer games have raised serious intellectual property rights concerns as the dynamic and unending interactive environment need a more complex mechanism for protection. Further, the user-generated content in such interactive games raises questions regarding the authorship of such work, i.e., whether it belongs to the user or the publisher.
Yet another concern has been online streaming of video games. The practice has gained popularity with the development of platforms such as YouTube Gaming and Twitch. Although live streaming is considered to be copyright infringement, such activities have been generally allowed by publishers as tolerated infringement because it increases the popularity and sale of their games.
The rapid growth of the Industry has raised a number of intellectual property rights concerns for the various stakeholders. Accordingly, there has arisen a need to address their concerns and to protect their rights. Consequently, the Act should be amended to include specific provisions for the protection of video games. A WIPO study has recommended that an international legal framework must be adopted for sui generis legal protection of video games and has also acknowledged the need for legislators to address the concerns arising from online streaming and e-sports events. The lack of judicial precedents in India has contributed to the uncertainty and only with the implementation of a specific legal regime, can the business interests of the Industry be protected.
The article has been authored by Yash Raj, a student at National University of Study and Research in Law, Ranchi.