The video game industry in India has seen a tremendous change over the past few years, from the time it was only played on a computer or a cassette based video game to the present when it can be played on different platforms i.e. mobiles, gaming consoles, virtual reality headsets, etc. The reason for such growth can be attributed towards the lifelike graphics and different story modes convincing people to believe that they are in a real alternate world allowing them to customize various aspects of the same.
The intense and detailed level of video games and its technology raises issues pertaining to intellectual property rights of such games and its developers, which is discussed in the present bulletin.
1. Overview of video games
The different types of games include racing, wrestling, sports, strategic, open world games (here a person is allotted a specific character and is placed in a virtual city allowing him to do various kinds of stunts and actions), etc. A game based on sports includes personalities from that particular sport along with brand advertisements to make the game appear more lifelike. Different parts of the game such as appearance of the characters, background music, theme and story line requires strong protection over its trademarks, copyrights, designs, etc. This is essential because of the efforts, creativity, innovation and a lot of time given by a set of people to bring such games into existence. There have been games which took five years and even more with investment of billions to come in the market. Majority of the open world games, action games, fighting games or first person shooter games, begin with a story line to be followed on the basis of certain choices made by the player and will eventually end in a form and manner as decided by the developer. Even though the popularity has increased amongst children and adults, specific regulations are not in place. Deliberate attempts for interpretation of IP laws cannot be a solution and hence, there is a need for gaming laws.
2. Application of IP laws
- Cinematographic work: In India, no specific regulations have been provided under the IP laws thereby creating ambiguities for the game developers. The Copyright Act, 1957 (“CA 1957”) provides cinematograph film as a work of visual recording analogous to cinematography1. Video recording means recording in any medium of moving images or representations2. A video game may be presented in the form of a movie but is created through computer programming codes which cannot be construed to be as video recording. Even if a game gives a perception of being a video, it is the action of the player caused through pressing buttons which runs the game questioning whether a video game can be a cinematographic work. Video games cannot be presented as a movie but rather requires interaction of the player. Therefore, it can be assumed that it cannot come under the ambit of cinematographic works.
- Author: A developer can either be an individual or a team developing a game. According to CA 1957, an author is defined with respect to literary, dramatic, musical, artistic, photographic and cinematographic works3. Further, section 2(o), defines literary works to include computer programmes, tables and compilations including computer database, which means that the author with respect to a video game can be assumed to be either its developer, producer or whosesoever has caused the work to be created. The interpretation of the above definition can only cover the coder, programmer or any other person using a computer to run the game. . The producer, game animator, creative director, etc will not be covered in the definition of an author. This means that their contribution may not necessarily get the monetary reward they deserve through royalties which, assuming success of the game, may be significant. The challenge will lie in the ability to do the apportionment linked with every individual’s contribution, and how that can be allocated internally, assuming copyright is in the name of the company for which they developed the game.
Further, a contract of service and a contract for service create ambiguity in the rights of the developers. Under the former, , an employer is the owner of the copyright created in the course of employment unless any contract is signed contrary to the same4 and is also entitled to the royalties. In the latter, the contractor or developer who is specifically hired to create all or varied components of a game ought to be the first owner of the copyright. A contract for service would give both the employer and the contractor royalties created during the course of work. It would include outsourcing done by the employer for getting the game created and developed by a person or a company which has the required skills and expertise. The issue here would be when both the employer and contractor have joint IP rights in the game as noted, CA 1957 does not specify the clear definition of an author when there are multiple developers in the gaming industry and which has the potential of creating ambiguities regarding allocation of the royalties.
In Sony Computer Entertainment Europe Ltd. Vs Harmeet Singh and Ors.5, the affiliate company of Sony Computer Entertainment made gaming consoles known as Playstation 3, Playstation Vita, etc. and had developed various video games to be played on the same platform. One shopkeeper, Mr. Harmeet Singh and his associates sold such consoles and video games out of a shop based in New Delhi. They were allegedly involved in modifying and uploading pirated softwares in the gaming consoles so as to run the pirated version of the games created by Sony. The software was called as Jailbreak which would break the encrypted code on the original machines so as to make it compatible with the pirated version of the games installed by Mr. Singh. Further, he would systematically unlock the system and modify the original equipments to make it ready for use with the pirated software. This was done by charging a nominal price from the purchaser enabling him to play expensive games at a very low cost. Mr. Singh only bought one original disk of that particular game created by Sony and made various copies for its distribution. This act of overriding the encrypted code violated the copyright of the plaintiff in the software of its operating system.
Sony approached the court seeking injunction, restraining infringement of copyright, infringement of trademark, passing off, rendition of accounts, damages, delivery up, etc. It was contended by Sony that their original machines were being modified without their consent and that Mr. Singh infringed its copyright by introducing pirated games without having any license. The main dispute was copyright infringement and the ability to create reproductions of Sony’s games. An ex-parte injunction was granted preventing Mr. Singh from copying, selling offering for sale, distributing, hard-disk loading, modifying the processing unit of the consoles, counterfeit/unlicensed versions of software program/games of Sony which amounted to copyright infringement.
The case does not provide for the long term effect of the copyright infringement on Sony. Although, it can be assumed that it was likely to create quality concerns with respect to the products created by Sony, even though the warranty of such consoles as per the terms and conditions lapses as soon as the product is tampered. Further, since the original disks of the games created by Sony were copied and uploaded in such consoles, it would have only deprived Sony of its earnings from each disk it sold.
- Computer Programme: Section 2(ffc), CA 1957 explains computer programme and the copyright protection attributed to it. It is a set of instructions in the form of codes which causes a computer to perform a particular task or achieve a particular result. It can be only be assumed and interpreted from the definition that video game cannot be possibly covered. A gaming console or a particular game does not provide instructions to the computer or any other electronic device for performing any tasks. It is the software which performs such functions. A game and a gaming console only receive instructions from the player who is playing the game. The definition needs modification since it refers to the technology for software used for different purposes like accounting, music, calculator, etc. and, as such, does not consider gaming.
- Patents: The essence of a game lies in its game play i.e. how a person reacts to various aspects (controls, story, video, audio, etc). Section 3(m) of the Patents Act, 1970 (“PA 1970”) provides that method of playing a game does not count to be an invention6. However section 2(l) provides that any invention or technology which does not exist in the country can be patented. Further, section 2(ja) provides that an inventive step which leads to technological advancement having economic significance shall attribute towards an invention. Therefore, method of playing a game should be allowed to be patented since it is a technological advancement with economic significance. Compared to 1970’s, games have developed a lot, play methods have changed and there is a lot of economic significance on account of the revenues gaming can generate. The basic crux of a game is the way it is played which includes moving the character(s), listening to the background music as well as the level of excitement
and seriousness which it creates. Thus, whether the players like or dislike depends upon the particular method created by the developer enabling the player to do various stunts, actions, character selection to perform its personalized qualities. A method of playing is not just an idea or expression but involves writing of different codes for the game to work. If a person creates new method of playing a game then it should be allowed to be protected as a patent so as to encourage the creativity of game developers.
- Designs: A game consists of various designs that mean creating various levels in a game, designs for the location where it is played, the natural environment, etc. However, the Designs Act, 2000 (“DA 2000”) does not cover it under the definition of a design. Section 2(d), provides that a design includes features of shape, configuration, patters, composition of lines applied to any article in two or three dimensional forms by any industrial process. No designs created through technology have been covered by the statute, which only provides for designs created through an industrial process.
From the foregoing, it is clear that the current statues do not provide protection to the game developer(s) in India. While the development of the gaming industry has seen a massive growth but the laws are yet to provide unambiguous IP protection to the developers. Modern interactive gaming includes characters, levels story line, game play that are a whole new category for the authors. The definition of an author leaves out creative elements of technology used for creating video games. Inclusion of words like computer generated in the definition of an author cannot cover this industry and its various components which require detailed attention. The definitions were inserted when technology had just about started emerging and was not all- pervasive. Now, of course, they need to be re-visited. Increasing gamers have found ways to get games at a lower price to play it on the consoles. Downloading games and uploading it on a disk to play it on computer and game consoles, makes it necessary that the laws provide for provisions to prevent infringement. Absence of legislative protection creates problem amongst Indian and international developers since a large number of video games developed outside are played in India. The lawmakers needs to examine, agree and implement a law d on legal classification of video games, developed in India and outside India which, in turn, will afford the necessary protection to the developers.
1 Section 2(f) of CA 1957 defines cinematographic film as a work of visual recording which includes sound recording, visual recording and cinematograph which includes video films.
2 Section 2(xxa) provides that visual recording is recording in any medium by any method which includes storing the same from moving images or representations from which it can be perceived, reproduced or communicated by any method.
3 Section 2(d) of, CA 1957 defines author as the person who is an author of any literary or dramatic work, composer of a musical, artist for an artistic work, producer for a sound recording or cinematograph work and person who causes the work to be created generated through a computer in relation to any literary, dramatic, musical or artistic work.
4 Section 17(c), first owner of the copyright in case of work done in the course of author’s employment under a contract of service shall be the employer in the absence of any agreement contrary to the same.
5 CS(OS) NO. 1725/2012.
6 Section 3(m) of PA 1970 states that a mere scheme or rule or method of performing mental act or method of playing game is not an invention.