MyFondia VirtualLawyer
November 24, 2016

Game companies and intellectual property rights, part II: copyright protection of video games

After a gaming company has ensured that it really owns all the intellectual property rights associated with the game, it should be aware of how the game is protected by these rights. The most important and common form of protection for video games is copyright that a work automatically receives at its creation. Copyright is similar to physical property rights and means the author’s exclusive right to decide how the work is used. Copyright protects the author’s earning potential through economic rights such as the right to make the work available to the public, i.e., display the work publicly or reproduce the work. Copyright also provides moral rights that protect the author and the value of the work, which means, for example, that making of copyrighted works available to the public in connection with or in the form of something offensive is not allowed. In addition to compensation and liability for damages, the consequences of copyright infringement may include criminal penalties.

In order to hold on to rights and defend them, it is important to understand when the game and its different elements are protected by copyright. Copyright does not protect the idea, theme, story, methods or data content of a work, such as a video game or its separable elements, but only the concrete appearance and expression of the work. This distinction between an idea and the expression of the idea can be illustrated by an example from the early years of video games, namely the Pac Man maze game. In the related copyright dispute the Court ruled that the game’s copyright protection did not extend to the idea of the main character eating symbols in a maze but, instead, the visual appearance of the characters, symbols and the maze were eligible for copyright protection. In order a particular work to obtain copyright protection it has to meet the threshold of originality, which means that the work must be independent and original in the sense that no one else who would have reached the same result when expressing the same idea. The threshold for originality is relatively low, but, for example, simple graphical tables or geometric elements tend not to meet it.

Due to the multidimensional nature of video games, legal classification and copyright protection of video games as a whole varies depending on the country or region. Due to national copyright laws and case law, in some countries video games have in principle been classified as audio-visual works that are protected in the same way than films, or as computer programs due to their strong dependency on software. In the EU, video games are considered to be joint, audio-visual multimedia works. According to the European Court of Justice, video games are always complex data sets, which not only include the code, but also audio-visual elements, and thus their creative value is not limited to the written code. Therefore they cannot be considered exclusively as computer programs.

Video games consist of two, severable main elements: literary and audio-visual materials. From the perspective of copyright law, video games are joint multimedia works composed of multiple works that are eligible for copyright protection individually when they exceed the threshold of originality. The audio-visual elements in video games include the graphic elements, moving and still images, as well as sound. The software, which together with other elements of the video game enables the game to function in the desired, interactive way, is considered as literary work in copyright law.

Maintaining and enforcing of copyrights is worthwhile, but the scope of actions should not be exaggerated as copyright is not an absolute. Copyright limitations and exceptions allow discussion and criticism of a work, the right to quote the work as required by the purpose and in accordance with good practice (the so-called citation right), as well as the use of a work for educational purposes. Unfortunately these exceptions are often referred when attempting to justify content that in fact infringes the exclusive rights of the copyright holder and damages the value of the work. For example, giving a false impression of a work is not permitted under the citation right, nor is presenting the work in an offensive context or in public allowed under educational purposes without an appropriate educational purpose.

Given that the business of a game company bases on utilising intellectual property, it is worth to take good care of the copyrighted material. In most cases players and publishers are only granted a license to use or access the game under specific terms instead of transferring any ownership or intellectual property rights to it. In order to maintain the value of the video game brand and safeguard investments, the unauthorised use of elements of the game should be monitored. A game company should intervene early in observed infringements, which may include, in addition to producing copies of the game or its elements, the sale of game accounts, and websites that misuse copyrighted materials for the purpose of gain by misleading players to disclose their account or credit card details.