Copyright is a specialized legal protection, falling under the category of Intellectual Property, giving exclusive rights to a creator/author(s) of a creative work. The rights were given and the duration of these rights differ from country to country, and as is standard with Copyright, is also limited by (country specific) exceptions, like Fair Use.
Video Copyright and video games
Historic status of video games in copyright
Video games may fall under the definition of a 'creative work', but the concept of computer software as an artistic medium has been around since the emergence of copyright as a legally enforceable right. In the early 18th century by the Statute of Anne, copyright was a constantly evolving field, starting with written texts as an uncontroversially protected subject matter, and then evolving to the extent of giving protection to photos, sculptures, software, etc. 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, they have to rely on interpretations of pre-existing categories and try to fit in the pigeon holes the Law of the land lays out.
Earlier, before the TRIPS required member countries to recognize software as a Copyrightable Subject Matter, even 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 was given was very restrictive due to interpretations of the law at the time. Across jurisdictions, even today, the protections given to a video game is restricted because multiple copyrights have to be taken out to protect different components of a Game in most countries.
Maps Copyright and video games
Issues with copyrighting games
Game Creation
There are multiple aspects about video game creation that cause the several components of the software to be separately copyrighted; 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 small creators or indies to 'borrow' assets to implement them in-game. The model of granting access and permission to use these assets differs across websites and can 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 (examples being EA, Activision, Sony), but when these self-contained companies create large and detailed worlds, most assets they create end up being used only once, creating a limited public (and in turn privately available) pool of resources/assets. This means that often assets have to be recreated in order to create a new game (or squeal by another company/creator) and this is a is a common complaint of game developers, as it usually costs large amounts of money to create commercially viable assets, which often pushes out smaller developers / smaller companies from producing better quality games.
Game Engines
Game Engines are a framework which developers can use to create games, consisting 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 sole 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 on that engine, making that particular feature (regardless of how central it may be to a game) essentially the same in all games created with that engine. That 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. Again, large video game houses/publishers can develop in-house engines, sidestepping this limitation.
Producers-Developers Relation
Classically, Game Development Studios created the actual game with the publisher having the role of securing (or providing) funding for the game, bearing losses as well as, in most cases, marketing the game, with all these expenses being large and for AAA titles running into tens of millions of dollars. But, with the advent of the Internet and the rise of Indie Culture has come to a new wave of financing and distribution technologies. Sites like Kickstarter and Indegogo allow for interested consumers to directly contribute (pre-pay) towards the development of the game and digital download sites like Steam and Gog.com remove the costly and previously essential aspect of physical creation of Game Discs and their distribution. All this has allowed for a move away from the standard of Developers creating a game while all IP rests with the producer/publisher 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".
Music Creators, Voice Actors and other Contributors
All contributors which do not add directly to the code of the game would not be protected by a copyright if the copyright takes out is for a literary work, 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" and hence not belong to them, but their employer. (US Case: CCNV v. Reid; Principle: Work for Hire) Music is generally not created in-house by game developers and since 3rd parties are hired, this may not result in a work for hire. A good rule of thumb is that if someone is not a full-time employee, have the contributor specifically and in full, sign over their rights to you/the employer.
Gameplay
Hardware Limitations
Some copyrightable elements of a game may be created due to limitations of the Hardware it is being developed or played on, e.g. the classic game Space invaders, as originally played as an Arcade game, got faster as you killed more of the onscreen aliens as that freed up system resources, making this change an actual element of the game.
User Input
(See: Persona 5 Streaming Restrictions: 1, 2; Fair Use and Streaming)
User input is an essential component of any video game as they are, definitionally, interactive media. Though this may not change the IP rights in the base code of the game, there are developers/publishers who restrict the rights of players to broadcast their playthrough of the game in an effort to curb possible loss of sales to 'Lets Play' streamers. 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.
Edge Cases
There are many edge cases in the case of video games. There are a plethora of narrative-driven games which are more like a Movie with some Quicktime Events to add interaction while nonetheless continuing on a singular rail and the only effect of not successfully completing a quick-time event being repetition of a part of the game, but the repetition is again in the same exact manner/order (E.g.: Beyond : Two Souls). Alternatively, there are some games which have a completely standard gameplay design but introduce fully featured live-action segments between parts of the game (possibly altered a slight bit by the decisions taken by the player during his playthrough), hence creating a split between interactive and non-interactive works (e.g. Quantum Break). These types of edge cases lead credence and support to the current multiple copyright approach most countries follow for copyrighting video games as having a singular Copyright for a video games would create issue, depending upon its implementation, as to what all should be included and if non-interactive elements of a game should necessarily be covered under the same protection.
International Standard
The Berne Convention for the Protection of Literary and Artistic Works (The Berne Convention of 1886) is currently the International Treaty which provides the scope for protection of video games as a Copyright. This protection can be drawn from the wide definition of "Literary and Artistic Work" Article 2 of the Convention, which reads as:
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.
The issue with this standard is that it treats the whole game as a singular component while not defining what would be covered by such a protection and what would not be. WIPO itself recognises that 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." This statement, along with the fact that WIPO published a study focusing on a Comparative Analysis in National Approaches, shows that WIPO recognises that the application of Article 2 in not clear or absolute and different countries protect video games in drastically different ways. The WIPO has 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."
Comparative analysis about inclusion of copyright protection
"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." During game development, it is important to recognize how one's country treats a work with or without copyright protection and use that information to register the game (or schedule development) in a manner which is beneficial for the copyright holder.
United States of America
The US Copyright Act 17 U.S.C, Section 102 enumerates the requirements of a Copyright in the US. The term video games does not make an appearance but the requirements of a Copyright, being that a work is original, fixed in a medium (whether analogue or digital) and can be perceived and reproduced can be met by a video game. The USA has the world's largest video game industry and this has led to this jurisdiction having a relatively developed jurisprudence on the matter. But, when it comes to the issue of how many and what types of copyright to get for a video game, 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."
What all this comes down to mean is that the US Law does not specify a certain protection to be given to a Game and it is upon the individual(s) registering the game to ascertain which category it would best fit into or would be best at protecting the interests of the author/assignee. This can rage from one of the many different categorizations under copyright or even using other forms of IP protection, e.g. parts of the game not released to the public can be protected using Trade Secret Law etc. Further "means for protecting certain elements of video games are patents (for the functional aspects of the game) and trademarks (e.g., the title of the game and the names of the characters)."
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." So, when a game is released to the public, there is nothing in copyright law which prevents others from making another work on similar principles. Copyright protects only an author's expression in literary, artistic, or musical form hence only protecting the code, voice acting, character models, music etc.
Due to an uncertainty of protections in the US system as well as the fact that an author can decide which style of copyright they want protection under, the applicable test may differ.
Application of the Idea/expression Dichotomy
The issue of the Idea Expression Dichotomy was discussed in one of the first video game issues to reach litigation, being Atari, Inc. v. Amusement World, Inc. (1981) and was between the creators of Asteroids (developed by Atari) and Meteors (created by the defendant). In this case, the court ruled in favour of the defendant because they believed the similarities between the games to be only the Plaintiff's Ideas and hence not copyrightable. According to the court, "they 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."
Substantial Similarity Test
It was stated in Atari, Inc. v. North American Philips Consumer Electronics Corp. (1982) 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.
Subtractive Approach Test
Nichols v. Universal Pictures laid out this test for copyrighted material which contained both copyrightable and public domain material. The Case lays down 3 steps to be followed to ascertain copying:
- The allegedly infringed work is analyzed to determine the parts that are protected,
- The unprotected parts are subtracted, and
- The fact finder examines for significant similarities between what remains of the allegedly infringed work and the allegedly infringing work.
This Subtractive Approach is the preferred Test by Courts in the US (save the 9th Circuit ),
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:
- Abstraction - ascertain each level of abstraction.
- 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.
- Comparison - compare the remaining components for infringement.
Authorship
In the USA, corporations can be the Author of an audiovisual work, which tends to be the most commonly used classification for a video game and hence most employees or other contributors would not be considered the Author, but the hiring corporation would. this is possible because the US copyright system is much less swayed by "Personality Theory" implications than European Countries. Hence, while European Law has very strong Moral Right Protections, The USA has very limited Moral Rights which are limited to works of visual arts as defined in Section 101 of the U.S. Copyright Act (Act), and do not include "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 (and the limited list of items which can be made as a work for hire with advanced agreement is restrictive and in most cases will not apply here), their works usually reside with them and the copyright over the same is not transferred to the producer/developer.
India
The Indian Copyright Act, 1957, does not specifically deal with video games or their issues in so many words. So, again, like every other Country, video games need to be read into the Law and slotted into one (or multiple) categories, to receive protection. Unlike the USA, India or the Indian Copyright Office has not publicly listed under what categorization should video game Makers seek protection. But, India does follow the Anglo-American tradition of allowing non-living persons to be authors, which allows companies 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." This means that this definition does not leave scope for video games to slot in. The law on video games in India has developed more on the basis of business practice, rather than on the basis of the legislature accepting video games into the ambit of protection. This has led to developers and publishers going under the definition of "cinematograph works" to seek protection. Section 2 of the act establishes that 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 the major issue with this is that there is no jurisprudence regarding the same, so this classification has not yet been tested.) The law in India, on the other hand, does clearly states that a "literary work" includes computer programs and hence by extension, the source code of video games can be protected as software or literary work.
Authorship
India has no clear slots for video games and no authority has stated that video games should collectively apply for one license, Unlike the USA. So, the result is that all the different aspects of a game, like the art, code, gameplay mechanics etc. are independently copyrightable. Further, because of Section 2 (d) (vi) of the Indian Copyright Act, "author" is defined as anyone who "causes the work to be created", so in the case of video games, the produced/developer would be the owners of the copyright(s), regardless of others contributions. This understanding is furthered by Section 17 of the Indian Copyright Act which states that (paraphrased for the facts at hand) 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, but this only holds true when 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"
So, when there are any creative contributions to a game, which would be deserving of a copyright on their own, made by individuals outside of the developers/publishers employment, then the authorship of the same does not automatically fall with the developer/publisher and must be signed over, else shall continue to reside with the original creator(s) who conceived it as their work would be a Contract for service, not a contract of service. The distinction between Contract of Service and Contract for Service was enumerated in Silver Jubilee Tailoring House and Others v. Chief Inspector of Shops and Establishments & Anr which stated that the test was whether the services in question were rendered as a person in business on his or her own account? If yes, it is a Contract for Service, if no, it is a Contract of Service.
Contributors
As stated above, producers/developers of the video game hold all rights. On the other hand, 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. "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."
Test and Remedies
The Landmark case for deciding on infringement cases in India is R.G. Anand, which laid out the Test that is 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 infringement has taken place. (See Also: Other observations in R.G. Anand to see the full ambit of the test and its application. While looking at infringement relating to software one must also consider Section 51 which defines infringement of copyright and states that a person infringes the copyright of another if he/she without authorization commits any act which only the copyright owner has rights to do. Chapter XII of Copyright Act provides Civil remedies, being granting injunction and damages. Criminal liability also exists for the same under Chapter XII of Copyright Act, 1957 with imprisonment of up to three years and a fine up to Rs. 2 Lacs. The Act also looks at abetment of infringement is unlawful and punishable.
Issues with protecting Games with Copyright
Copyright has risen as the default protection for video games because, in essence, a video game runs because of computer code; historically 'computer code' has been slotted as a literary work to derive its protection. So, when there was no jurisprudence on the matter, authors seeking to protect their video games went to the closest relative it had in the law, software. This means that the law was (and has not) properly adjusted to having an extra subject-matter under its ambit and hence the formalities and categorizations applicable to a video game, as also the protections given to them, is not clear or standardized. The US has the most developed law, because of having the world's largest video game market (and even then the law is not absolute, clear or even codified specifically for Interactive Media), but nonetheless, the law needs to develop on an international level. Giving copyright protections to Games creates issues, depending on how the protection is given out, e.g.:
- Granting excessive protection to components of the game that would be better protected under another IPR regime.
- Having a blanket cover for varying components OR having to spread around technically similar components because of outdated formalities which require works to fit in pre-defined slots which were not made with software and video games in mind.
- Lack of jurisprudence on the application of formalities and legal requirements on video games, meaning that the authors have to apply for copyright as per best practice and hope the same is upheld as and when challenged.
Alternatives
One possible alternative is a singular (standalone) regime for interactive media or even video games in particular. This would solve the complexity and ambiguity of registration fillings and create a streamlined process of registration for one of the largest software industries in the world. But making a subdivision of Software like this could possibly create its own issues as also bring back the existing issues with singular protections listed above, like excessive protections etc. Interactive Media, if not given a singular copyright, could be granted a special copyright for the ideas implemented in a game. Some gameplay elements may not be properly protected through just literary protection of the code of a game because it is possible to reproduce a similar (if not same) feel using drastically different code. Substantially similar concept and feel do give some protection, but still lacking (app store clones).
Though Copyright has been the default protection, it is not the only protection video games can get and there have been situations where some components of a game have been given Patent protection for creating a new and innovative approach to some mechanic of a game. Trademark is also used very frequently to protect game names as well as characters developed in the game. WIPO has also concluded somewhat along the same lines, in their report stating that " video games are complex creations, composed by multiple copyrighted works (e.g., literary works, graphics, sound, characters and software) which deserve independent legal protection. Although the majoritarian trend considers that software is the prevailing element of video games, we believe that the distinguishing element of one video game from another will not be the underlying software only, but also the various audiovisual and literary elements created for each video game. Those may also include performances by actors and musicians. In parallel, given that this is an ever-changing industry, we acknowledge that some video games (for example, those simple games developed for social networks or for smartphones, such as popular card games or bubble shooter games) do not stand out for their audiovisual elements and would need to seek copyright protection through their software. Therefore none of the elements neither the software nor the audiovisual would necessarily prevail; a distributive approach seems to be appropriate, insofar as a video game is made of both elements."
References
Source of the article : Wikipedia
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