There is currently limited research and policy considering national differences in how copyright protects video games. Thus, the video game industry must navigate multiple jurisdictions and develop effective enforcement strategies to deal with often, unique types of copyright infringement.
The video gaming industry has experienced rapid growth since the early 2000s and today exceeds other creative industries, like film and music sectors in terms of consumer popularity and revenue generated. For example, revenue numbers for the video game industry are forecast to increase to USD 180 billion in 2022 and USD 200 billion in 2023.
With this rapid growth and advancement in technology comes increasing challenges in terms of legislative frameworks and regulations which in turn create new challenges for the industry. The research, commissioned by the World Intellectual Property Organisation (WIPO) and presented in Geneva in September 2022, identified potentially infringing uses and practices that are unique to video games and grouped them based on at what stage of the video game lifecycle they take place, say the researchers.
These include:
- Creating a video game: One concern for right holders is the use and incorporation of third-party intellectual property into their own product and thus exposing themselves to potential copyright infringement liability. For instance, including real world brands, protected designs, characters, or performances. The other instance is cloning, whereby a competitor creates a game which replicates the game experience of the original, particularly prominent in the mobile gaming sector.
- Distribution of and access to a video game: This examines emulators and ROMs (read-only memory files) that enable a game to be run on other hardware and/or software platforms than for which it was designed, which can be particularly relevant in the case of retro gaming where older titles are not playable on modern consoles and operating systems. Key selling, which entails unauthorized re-selling of access keys, account transfers and second-hand video games, all of which infringe the exclusive right of distribution and/or making available to the public and are also usually prohibited by license agreements. This reflects on the different treatment of physical and digital copies by copyright law.
- Altering the video game: This concentrates on two types of modifications: modding, which entails alterations of one or more elements of a video game in ways not intended or enabled by the original developer (such as introducing a new character or enter game level), and in-game user creations, which result from players making use of tools provided by the game itself for creating new content (in-game creativity enabled by sandbox games such as Minecraft).
- Interfering with the integrity of the game: One of the most significant practices falling within this category is cheating or using private servers. These exploits differ from the previous category even though they may require a modification of the game or some of its elements. In general, this negatively impacts on the player experience.
- Re-purposing of a video game: These uses and practices go beyond past just 'playing' the game and re-purpose the game or some of its content outside the context of the game, such as user-generated content (UGC) and esports, the former carried out by players and player communities and the latter performed by professional players and tournament organizers in a competitive context.
Intellectual property disputes in the video gaming industry typically revolve around copyright, trademarks and patents. Given that intellectual property rights are the lifeblood of the industry, it is vital for the video game companies to be able to protect their IP in order to safeguard profits and ward off unauthorised and infringing uses and practices, or those that are damaging for the reputation and public image.
There is, however, clear evidence that not all potentially infringing activities pose a threat that needs tackling and can even be beneficial for the community and the video game company, since the underlying activities can help identify bugs in the game or inspire further fan works, say the researchers.
Right holders should also be wary of the problems that can come with strict enforcement. Thus, there needs to be a careful consideration of whether legally pursuing a copyright infringement will address the issue and make financial sense.
This is largely the case currently within the industry, according to the research, which found that video game companies show a tendency to tolerate certain uses and practices, such as modding, in-game creations or user-generated content if they have positive economic and marketing impact.
Despite some jurisdictions' reports showing many varied cases of video game copyright infringement, the research reveals that avoiding litigation is good practice, unless there is a substantial risk posed by the infringement and there is a high chance of success. In addition, developing a multi-layered enforcement strategy is highly recommended. The industry has managed to find alternatives to litigation by reaching out directly to the alleged infringers or implementing creative contractual or technical solutions.
School of Electronic Engineering and Computer Science Lecturer Dr Michaela MacDonald, of Queen Mary University of London, said: "Given the global and highly complex nature of the industry, the gaps in harmonization of copyright law, and the interactivity inherent to video games, we are faced with diverse and often unique uses, practices, and strategies that are not easily translated into specific industry-wide policies and strategies. It is clear, however, that copyright law and license agreements play a crucial role and will need to be adjusted to ensure a sustainable growth of the industry."
She added: "Flexibility and creative solutions will be central to dealing with the many one-of-a-kind infringement issues the video game industry faces."
Dr Gaetano Dimita, Senior Lecturer in International Intellectual Property Law at the Centre for Commerical Law Studies at Queen Mary University of London, said: "Video games are the most innovative and successful of the creative industries and they have a profound impact on culture and society. They can help us understand what the future holds for us, and we really welcome the increasing acknowledgement of their importance and uniqueness.
"Their distinctive nature (interactivity, connectivity, and creativity) facilitates the kind of user experience previously not made possible, resulting in a truly unique ecosystem. We can expect for this trend to become even more prominent in the Metaverse."
Dr Yin Harn Lee, Senior Lecturer in Law at the University of Bristol, said: "Our analysis shows that not all unauthorized uses and practices pose a commercial threat to the video game industry. In fact, practices such as streaming, modding and the creation of user-generated content are often beneficial to the industry and indicates the existence of a thriving user community. In the interests of maintaining a positive relationship with the most engaged segments of their user communities, video game companies should adopt a multi-layered strategy to copyright enforcement."
Copyright infringement in video games
In Tetris Holding v. Xio Interactive, the right holders in the well-known Tetris puzzle game brought a claim against the developer of Mino, a game based around the same concept of requiring players to manipulate falling tetrominoes in order to form complete lines. The court began by noting that under US copyright law, protection subsists in the audiovisual display generated by a video game and, in particular, "the entire effect of the game as it appears and sounds." Here, the court found that the designer of Mino had engaged in detailed copying of the game mechanics found in Tetris, including the dimensions of the playing field, the display of "garbage" lines, the appearance of "ghost" or shadow pieces and the display of the next piece to fall.
More information
The researcher's paper is available here: https://www.wipo.int/edocs/mdocs/enforcement/en/wipo_ace_15/wipo_ace_15_4.pdf and an executive summary of it is available here: WIPO/ACE/15/4/EX (EN)
