In India, there is no specific regulation governing gaming industry, and thus, video games are also not categorized under any specified group of Intellectual Property Law. Although, a description of “cinematography works” does exist in the Copyright Act, 1957 (hereinafter referred to as the “Copyright Act”) under Section 2 which states “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 preceding description makes it apparent that the “process akin to cinematography” is defined in such a manner that video games are evidently included in the scope of Copyright.
Furthermore, because the Copyright Act permits computer programmes to be secured as literary works according to Article 10 of the Trade Related Intellectual Property Rights Agreement (hereinafter referred to as “TRIPs”) which specifically provides that computer programs, whether in source code or object code shall be protected as literary works under the Berne Convention, 1971 (hereinafter referred to as the “Berne Convention”).
Even though there is no codified law in order to protect games, but the existing law provides for hypothetical protection for e-Sports, such as Trademark Law which helps protect the e-Sports’ name, the characters unique identification, and the symbol.
On the other hand, the Patent Law, provides protection to gaming equipment such as gaming consoles, joysticks, and any other technical device which aids in the handling of the game.
While the background music, game source code, and other artistic elements of the e-sports are all protected under the Copyright Law. The trade secrets come into play when the producers or creators of the game do not wish to release their codification.
According to Forbes, Indian Gaming Industry is valued over $890 million and ranks among the top five nations in the world for mobile gaming. The Gaming industry’s magnitude is sufficient to make everybody conscious of the legal safeguards necessary in this sector.
THE INDIAN SCENARIO
Though there are no specific legislations, the gaming industry is interpreted to be governed under the following legislations:
In the Indian scenario, video games can be protected under the Copyright Law as they fall within the ambit of “creative works”. More specifically, the different elements of these online games can be protected as Copyrightable work.
Additionally, software gets protection under the Copyright Law and so video games created through software can be protected in the same way. The “works” defined under Section 14 of the Copyright Act, protects under its ambit, storyline, characters, music, and parts of the code. Thus, major elements of video games can be under the said section.
Moreover, Article 2 of the Berne Convention, protects various Literary and Artistic works, and video games can be protected under the ambit of the said Article. Since, India is part of the above mentioned convention, video games in India can also be protected under Article 2 of the Berne Convention.
The names, logos, and symbols connected with the game, as well as its characters, are all protected by trademarks.
Section 30 of the Trademarks Act, 1999 (hereinafter referred to as the “Trademarks Act”), establishes some exceptions in which nominative and descriptive fair use may be implied in such situations.
Section 30 (2)(a) of the Trademarks Act, which refers to the use of a registered trademark in a descriptive way, i.e. used in connection to products or services to indicate the sort, quality, amount, intended purpose, value, geographical origin, time of production of goods or rendering of services, or other features of goods or services.
Subsequently, Section 30 (2)(d) of the Trademarks Act discusses about the use of a registered trademark by a person in regard to goods altered to form part of or be accessories, provided that it is ‘reasonably necessary’ to indicate that the goods so adapted are compatible with the goods marketed under the trademark.
The Copyright Act protects the expression of computer code methods and hence cannot protect the “operational techniques and methods”. Thus, Patents Act, 1974 ( hereinafter referred to as the “Patents Act”), comes to the rescue.
The Patents Act protect the scope i.e. the operational aspects of the game rather than the theoretical aspects i.e. the process of development and the product that is developed.
Thus, according to Section 3(k) of the Patents Act, it is necessary to establish that any hardware is of equal importance to that of a software and a software needs to be attached to gain patent protection.
In case of a video game, software is linked with a hardware, which means, the console and controller, both of which are equally important parts of a video game thereby video games getting patent protection in India.
4. Industrial Design
Section 2(d) of the Designs Act, 2000 (hereinafter referred to as the “Designs Act”), defines “design” as any features of shape, “configurations, patterns, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye. “
Hence, the graphic characters of the games, as well as their gaming cover and graphic interface, are all protected under the Designs Act. Industrial Design Protection in the gaming industry protects only the outward aspects like forms, lines, contours, colours, and textures of the game characters and other models under the abovementioned section, and not any technological functioning.
Video game licensing is critical to the success of video game development, distribution, and marketing. The original owner of the game can enter into various licensing agreements for the sale and distribution of its work.
The creators and developers have been including licensed content into their games from the inception of the industry, not only to fascinate everyone, but also to attract a larger audience via the use of familiar technology to produce more genuine games. Licenses must be written in accordance with Intellectual Property Laws to protect the designer’s legitimate interests.
ISSUES RELATED TO INTELLECTUAL PROPERTY PROTECTION IN VIDEO GAMES
Multiple features of video game development have resulted in individual components of the programme being copyrighted independently and other being the common creatives or already in public domain cannot be protected under copyright.
There are several websites that allow designers to ‘borrow’ assets for use in games. Various websites employ different models for offering access and right to use these assets.
The self-contained businesses develop enormous, intricate universes, with most assets being used just once. The public pool of assets is very limited. These assets frequently needs to be reproduced to build a new game, which is a common issue amongst game creators because creating commercially viable assets costs a lot of money and makes it difficult for smaller studios to generate different games.
A game engine is a concept that enables a designer to make games. These engines are created by companies that allow game designers to produce games. However, due to restrictions or quirks, some designs or background work may appear differently in each game created with that engine.
Because, this feature is virtually the same in all games made with that engine, it is not covered by copyright. This reasoning also extends to games created with the very same engine that share source code, this wouldn’t be considered duplication but yet, it cannot be covered under the ambit of any Intellectual Property Rights for protection.
Publishers used to be responsible for procuring (supplying) finance for a game, as well as suffering losses and, in many cases, promoting it. However, with the emergence of independent culture and the Internet, a new generation of finance and distribution tools has developed.
Sites like Kickstarter and Indiegogo allow gamers to directly contribute to creation of game by purchasing it in advance. These advancements have enabled the industry to move away from the traditional model of Intellectual Property Rights being held by publishers rather than creators.
Music Creators, Voice Actors and Other Contributors
Copyrights for literary works would not protect contributors that do not directly add to the game’s code, but these components may be protected if an audio-visual copyright was removed. In terms of authorship rights, most contributors are employees, therefore their work is considered work for hire and belongs to their employer rather than to them.
In India, the case of Sony Computer Entertainment Europe Ltd. v. Harmeet Singh, 2012 SCC OnLine Del 6505, was the only significant judgement on copyright in video games.
The Delhi High Court issued an interim injunction against defendants for copyright infringement under Section 65A of the Act for modifying PlayStation systems to enable pirated games and selling pirated games without a license.
In another case of Tata Sons Limited v. Greenpeace International, 2011 SCC OnLine Del 466, the Delhi High Court was presented with a scenario in which the defendants were exploiting their registered Tata trademark in a game. The game featured turtles attempting to escape the Tata logo in the style of the popular video game Pacman.
The Court weighed the commercial or communicative goal of the speech, as well as the fact that this game was in the form of a parody, in balancing the legislation’s responsibilities under Freedom of Speech and Expression.
In this case, the trademark was used to criticize Tata, hence no infringement occurred.
One such case, that dealt with Copyright issue is Mattel Inc. and Ors. v. Jayant Agarwalla 2008 (153) DLT 548, where the Delhi High Court refused the copyright protection sought by the against the claim of infringement against the Defendant for its game ‘Scrabble’.
The Plaintiff alleged that the Defendant had duplicated the game under a different name utilising the identical layout, colour of tiles, and design. The Court clarified that the criteria of ‘originality’ was missing and observed that just arranging the tiles in a particular way or changing the colour of the tiles would not entitle the Plaintiff to a copyright protection.
The Court referred to Eastern Book Company & Ors. v. D.B. Modak & Anr., AIR 2008 SC 809, wherein it was held that there must be some judgement and ability and that a work should not simply be a mechanical exercise.
The Court in the above mentioned case, also referred to an international decision, Atari v. North American Philips, 672 F.2d 607 (7th Cir. 1982) and stated that the merger concept would apply to the current issue. This philosophy states that if an idea only has a few possibilities of expression, protecting one of them would imply protecting all of them, limiting freedom of expression.
Although the Mattel case is not directly relevant to video games, the decision’s premise may be applied to video games in the future. As a result, this merger philosophy can be used to a wide range of video games. In cricket games, the bat and ball are not protected, while in golf games, golf balls and golf clubs cannot be granted protection. They are the common elements and therefore, not copyrightable.
Thus, the above mentioned precedents indicate that Judiciary is moving towards creating an ideal system for protection of gaming industry in India.
The significance and application of intellectual property law protection to many aspects of the gaming business will continue to be driven and assessed as the video game industry expands in size, providing novel and unique components to multiple components of game play.
It remains to be seen if the Governments around the world truly recognize the video gaming industry’s enormous economic potential and fine-tune their well-established intellectual property law systems to address and overcome the industry’s diverse obstacles and various dimensions appropriately and in a correct manner.
– Team AMLEGALS assisted by Ms. Ayasha Khatri (Intern)
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