Protection of video games: It’s time to up the ante

By Manisha Singh Nair and Priya Anuragini, LexOrbis
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Contemporary video games are an eclectic fusion of cutting edge technology and imaginative artistic expression. Replete with high quality graphics, elaborate visual effects and sophisticated characters in movie-like settings, they give gamers unprecedented freedom to explore, experiment and chart their own course.

The rapid technological evolution of video games has, however, brought to the fore complex issues concerning the protection of intellectual property (IP) elements inherent in them, which need to be addressed as soon as possible so that their development continues unabated.

IP in video games

Rapid technological developments have made video games much more complex in terms of components and design. In the 1960s, when video games were taking nascent steps, they only had basic graphics and rudimentary sounds not entailing much discussion of IP issues. But today video games embody numerous creative elements each of which can individually be the subject matter of IP protection.

Manisha Singh
Manisha Singh

While video games are eligible for multiple IP protection, they have mostly been protected as copyrights. However different regimes have different standards even for copyright protection and the legal status of video games is yet to be adequately established. While in jurisdictions such as China and Russia video games are classified as computer programmes and afforded concomitant protection, in countries like the US, India and France, different elements of the game are protected independently according to their specific nature and accordingly classified as literary, cinematographic or artistic works.

Further, the advent of the internet has significantly enhanced the interactivity of video games, especially open world games. In these games, gamers’ interaction with the game world has a dominant role in determining how the narrative advances and the final conclusion it reaches, unlike linear video games where players often advance through the game world along a specific path. Thus, every time an open world game is played, each player will have a unique experience depending on the paths they chose in that particular game. This adds yet another intellectual dimension to the video game, which may require IP protection.

Insofar as the storyline of the game depends largely on the path a particular gamer chooses, it is only logical that gamers be given exclusive rights over their contribution. Considering that many different paths are possible in open world games, this may substantially increase the number of rights holders in the video game creation chain and they may all want to know the exact scope of their rights. This issue is yet to be specifically addressed in most jurisdictions.

Indian scenario

Indian IP legislation has no specific reference to video games. While individual elements incorporated in a video game are independently copyrightable under the Copyright Act, 1957, it remains unclear whether video games may be protected as single, unique works of authorship like cinematographic works. However, Delhi High Court in the case of Sony Computer Entertainment v Harmeet Singh (2012) afforded effective protection against piracy of video games.

Priya Anuragini
Priya Anuragini

In this case, Sony had incorporated certain technological protection measures (TPMs) in its PlayStation gaming consoles to ensure that they could not be run with pirated video games. The defendants were using “jailbreak” software to circumvent the TPMs and modify the original PlayStation consoles so as to enable them to run pirated video games distributed by the defendants. The court in an ex parte order held that the defendants had violated the Copyright Act as they were not just modifying the plaintiff’s machines but were also introducing pirated games without any licence or consent of the plaintiff.

While the order was a welcome development, the IP framework pertaining to video games in India largely remains uncertain. Indeed, it has been widely reported that weak IP regulation has discouraged gaming companies in India from producing their own IP.

Though video games are the most popular entertainment medium and have a multibillion-dollar market, their protection leaves much to be desired. The limited protection as computer programmes is not sufficient to deal with the menace of piracy in view of reverse engineering. While many scholars have advocated their protection as cinematographic works, as of now this is not provided in most jurisdictions. Indeed, England’s Court of Appeal in Nova Productions v Mazooma (2007) held that video games could not constitute dramatic works as they were not capable of being “performed” and in all probability they are not films either. In view of this decision, it becomes essential to determine the legal status of video games such that they may be sufficiently protected across digital platforms.

Considering that there is yet to be a consensus on the status of video games in the copyright regime, it may be good idea to put in place a sui generis regime for their effective protection.

Manisha Singh Nair is a founding partner of LexOrbis, where Priya Anuragini is an associate.

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