Alliance Center for
Intellectual Property Rights
THE CHALLENGES IN SAFEGUARDING THE INTELLECTUAL PROPERTY IN THE GAMING INDUSTRY
May 15, 2023
* Bhavesh Ambadkar
Introduction
The Gaming Industries, though a smaller sector within the entertainment industry, has garnered significant attention from individuals of all ages over the years. Single-player or team-oriented games have eventually become a huge industry, with a projected revenue in the video game segment to reach US$ 2.38 billion in 2023, with an annual growth rate of 10.08% resulting in a market volume of US$ 3.50 billion by 2027. Over the past few years, there has been an outraging impact on the Indian market, with the development of digital and online gaming, the evolution of Augmented Reality (AR), Virtual Reality (VR), and the Network and Internet expansion, the country has seen a boom. The industry extends beyond developing and selling games, the scope of the market has expanded to sectors like eSports, official merchandise and marketing, streaming, animated series, etc., making newer ways to generate wealth.
In the past, Gaming companies have been generating profits from various sectors, prompting them to focus on safeguarding their Intellectual Property (IP). Whether it is coding, or the design of the characters commonly referred to as avatars, maps, audio, and music, they need to ensure their IP is registered and secured. The control achieved through the IP rights over the game can make a significant profit. Therefore, it is necessary to achieve protection for such control.
The reselling or rebranding of branded goods, the recording of gameplay or sports and its subsequent broadcast for profit, or any other such action that violates the rights of or infringes on the licence of a sporting partner or commercial broadcaster is prohibited by current IP laws and will result in penalties.
Intellectual Property
Intellectual Property Rights can be broadly categorized into copyright, trademarks, the right of publicity, domain name rights and trade secrets.
Copyright
Copyright is original work of authorship fixed in a tangible medium of expression, encompassing various forms such as books, software code, or website languages, provided they are original creations presented in written or recorded form.
The software coding used for developing the games is registered as copyrights by the company under their name, which may also include audio-visual elements like maps, sound effects, avatars etc. While the music and audio are recognized as copyrighted works, the player's performance in the game cannot be registered as a copyright, as it cannot be scripted and is not reproduced consistently.
The copyright owners own the advantages of:
- Displaying the work in public.
- Distribution of the work in the market.
- Reproduction of the work.
In an usual scenario, the publisher's control is connected with the end-user licenses or terms of service, which considerably limits the individual’s rights to publicly perform the video game online, whether recorded or live streamed.
Trademark
A trademark is something which distinguishes the product of the company from its competitors. It brings a sense of reliability to the quality or goodwill of the company and its products. The trademark could be anything, a word, a phrase, a symbol etc.
The registered trademark gives the owner the following rights:
- To legal ownership,
- The right to use it nationwide as a mark connected with the owner.
- The ability to file an infringement suit against the one who violates it.
Gaming companies usually trademarks the title of the game, the logo, and the names of the game, tags, etc,.
Other rights
Other kinds of rights are the right to publicity protecting the person’s rights to control the commercial use of their name, voice, image or likeness, and domain name rights and trade secrets, which are registered to create the commercial value out of it.
CHALLENGES WITH THE INTELLECTUAL PROPERTY
With current technological developments, it is simpler for the public to copy the games created by the company, which has spent millions of dollars and hundreds of hours of labour, and where inexpensive copies of games could be made available to the public domain in two to three days after the games' release, resulting in significant losses to the companies.
While a large proportion of creatives which cannot be registered are available in the public domain, and software like Game Engines is used in designing the background or general features of games, reducing time on development, these designs cannot be copyrighted.
The general lookout and threats which gaming industry faces related to the IP are:
- Game Cloning
- Piracy
Game Cloning
Game cloning is when one company makes a copy of the game which is available in the market and is made by another company. It is a replica of the primary game with little changes in the style of design or content quality.
This ends the motive of IP, destroying the original game IP and even damaging its reputation in the market. Gaming cloning can be seen frequently in the mobile gaming industry, as easier to develop mobile games and it has a larger market scope. It creates immense confusion in the industry with the genuine game still being available.
The cloner exploits the loophole in copyright law that excludes videogames from being protected under a distinct category, while other creative works like films, which are often protected under their category, are immune to being cloned. On the other hand, numerous replicated video games are nearly identical to the original game that came before them but still manage to avoid being recognized as copyright infringement.
Piracy
Another issue that the gaming industry faces is piracy issues. The industry incurs huge losses due to illegal copies of games being made available in the public domain, which leads to economic losses to the company, and there is a threat of viruses and data infringement on the user.
PROTECTION OF INTELLECTUAL PROPERTY
Game developers can take various steps to address the challenges of safeguarding intellectual property in online gaming. One approach is to register their IP, including trademarks and copyrights, to establish a more robust legal position in the event of an infringement. Another option is to invest in anti-piracy measures, such as Digital Rights Management technology, to prevent the unauthorised distribution of their games.
Enlisting the support of the gaming community and collaborating with its members is also an effective method for safeguarding IP in online gaming. Game developers can team up with players to identify instances of game cloning and piracy and take prompt action to safeguard their IP. Additionally, game developers can engage with players to gather feedback and enhance their games, building a dedicated and committed community investing in the success of the game.
RECENT JUDGEMENTS
In Tata Sons Limited v. Greenpeace International, the Delhi High Court involved the defendants in using their registered Tata trademark in a game that resembled the popular video game Pacman, in which turtles tried to escape the Tata logo.
To balance the responsibilities of the legislation under Freedom of Speech and Expression, the court considered both the commercial and communicative goals of the speech and the fact that the game was a parody. As the use of the trademark was meant to criticize Tata, the Court concluded that there was no infringement.
Another judgement from the same court is Mattel Inc. and Ors v. Jayant Agarwalla. The Court denied the Plaintiff's request for copyright protection against the Defendant's Scrabble game infringement claim. According to Plaintiff, Defendant had replicated the game with a different name using the same layout, tile colours, and design. However, the Court found that the game lacked the necessary "originality" criteria and noted that simply rearranging tiles or changing their colours did not qualify for copyright protection.
Conclusion: The protection of intellectual property in the realm of online gaming is intricate and multifaceted. However, game developers can take measures to alleviate these challenges and guarantee the triumph of their games, such as registering their IP, implementing anti-piracy tactics, and collaborating with the gaming community. While a legal solution is necessary to safeguard developers from imitators, it's crucial to maintain a delicate balance. Legal protection should not be extended to monopolize the concept of a game, but developers should feel confident that their investment in research and development, is adequately protected. Meanwhile, it remains uncertain if governments worldwide will acknowledge the substantial economic potential of the video gaming industry and refine their existing intellectual property laws to tackle the various challenges involved.
References:
- STATISTA, Patents, https://www.statista.com/outlook/dmo/digital-media/video-games/india .
- Susan Corbett, Videogames and their clones – How copyright law might address the problem, 32 COMP LAW & SEC REV 615, 618 (2016).
- Tata Sons Limited v. Greenpeace International 2011 SCC Online Del 466.
- Mattel Inc. and Ors v. Jayant Agarwalla 2008 (153) DLT 548.
Author:
* Bhavesh Ambadkar
Government Law College, Mumbai.
Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights (ACIPR) and the Centre does not assume any responsibility or liability for the same.