Over the course of the last four decades the video games industry has seen rapid growth and expanse. In 2019 the global video games market was valued at 151 billion dollars and the expectation for it is to reach a value of more than 250 billion dollars by 2025. For the last 40 years computer games have also evolved significantly from a technical perspective. Starting from simple arcade games such as Pacman and Space Invaders in the early 1980s, we have reached the heights of today’s video games industry with offerings that provide almost real-life simulations of complex environments and advanced graphics rendering that is a few steps away from fully-fledged virtual reality. Contemporary video games have also become a lot more complex – they are now packed with dozens of hours of gameplay, thousands of various sound effects, tens of thousands lines of dialogue. Against this background, it is far from surprising that the development and marketing budgets being allocated for some blockbuster games are now rivaling many movie budgets. Another interesting development is that video games are now conquering new hardware platforms. While in the past the traditional domain of video games were the personal computer and the gaming consoles, nowadays computer games are also produced for mobile phones and handheld devices such as Nintendo Switch.
What has not changed during the course of the last four decades is the vital interaction between creativity and technology that sits at the core of each computer game. We have to acknowledge that the gaming industry is above all a creative industry where ideas meet and blend with technology. A video game is still on a basic level a computer program where computer code runs the show. It is code that transforms creative ideas into intricate audio-visual expressions. It is still the code that controls and orchestrates the external sensory components of a video game that drive the interaction with the player.
In this complex universe of creativity and high-end technology, intellectual property plays a key role in generating and sustaining value. Consequently, IP is a key strategic asset in every computer game that impacts the business of game developers, publishers and distributors. IP pertains to intangible assets such as source code, inventions, brands, artistic works. It is of crucial importance for the participants in the video games ecosystem both at the stage of development and also commercialization to have a well-balanced IP strategy with a strong focus on securing, maintaining and capitalizing on the various IP rights subsisting in a computer game.
Different jurisdictions have varying approaches when it comes to classifying video games as an object of IP protection. Many countries take the approach where a computer game is seen as a structure composed of distinct elements and each of those distinct elements becomes itself an object of IP protection on the basis of its particular nature, instead of protecting the overall structure as a whole. Other countries treat a video game as a computer program, equipped with a graphical user interface. Finally, there are also countries, such as Republic of Korea, that protect computer games as audiovisual works.
Indeed, a video game is an amalgamation of many individual elements. We could classify those elements into 4 main groups:
- Computer code
- Audio elements
- Visual elements
- Other key elements (storyline, gameplay, game title)
Computer code is the main underlying component in a computer game. The source code of a computer program is usually one of the best kept trade secrets of a software vendor. As established, it is the code that orchestrates all other components in a video game such as the audio and visual works. Under the EU legal regime, the source code, the object code and the preparatory design materials of a computer program are protected expressions of the program, falling under the copyright protection regime. This is intuitive for source code which is expressed in human readable programming language and could be equated to a literary work. When it comes to object code, it is compiled from source code and also can be decompiled back into source code. Under the EU Software Directive (Directive 2009/24/EC), preparatory design materials are also included in the scope of copyright protection to the extent that the nature of those works is such that a computer program can result from them at a later stage.
Source code and object code can be classified as literal expressions of the computer program which underlies a video game. In addition to those literal expressions, a computer program also has non-literal expressions such as the overall structure, sequence and organization of the computer program. The structure of the program would generally reflect the separate modules, their hierarchy and their internal interactions. Those non-literal expressions of the computer program underlying a video game can also be protected under copyright and in case a competing company copies those when developing its own product, without authorization from the rightholder, this could give rise to a copyright infringement claim.
It must be mentioned that in modern games the underlying source code of a video game is rarely developed from scratch. Modern blockbuster games usually rely on middleware. Middleware can be defined as a piece of software, previously written and developed by a third party, that serves as a technical framework for the development of a new game. These middleware pieces are called a “game engine” and they provide a flexible software platform which comes equipped with all necessary core functionalities in order to develop a game application. An engine is like a toolbox that equips the game developer with some core functionalities such as a renderer, scripting tools, artificial intelligence, animation, and physics simulation. Some prominent examples include the Frostbite engine (used in Battlefield, FIFA, Need for Speed), the Unreal engine (used in Fortnite, Deus Ex, Borderlands) and the Unity engine (used in the new mobile versions of League of Legends, NASCAR Heat, Rust). When such a third party game engine is used, the distinctive character of a computer game is usually crafted through the original audio-visual components employed on top of it and the applied source code customizations. Inevitably, all video games that use a common engine will share a certain portion of their source code.
In addition to copyright, the code in computer games could also potentially attract patent protection. A patent can be granted for an invention – a technical solution for a technical problem. However, computer games, being a mere set of rules, methods and schemes for how the game is played and how the game proceeds are abstract and purely mental in their nature. They are not technical in nature and are not patentable as such. At the same time, if this set of rules or methods interacts in a given way with the computer hardware and as a result produces a technical effect, it can be potentially protected with a patent. Therefore, a patent will not be granted for software as such but could be granted for a software-related invention – a situation where the computer code interacts with the hardware in a specific manner and produces a technical effect. In addition to having technical effect, a software-related invention should also be industrially applicable, new and demonstrate an inventive step – i.e. it should not be obvious to someone who is skilled in the relevant art, in order to obtain patent protection. Due to the requirements for producing a distinctive technical effect and having an inventive step, it is relatively rare for the code in a computer game to obtain patent protection. However, this is not impossible. As we will see below, certain inventive gameplay elements that represent technical developments and produce a technical effect can be patented.
The audio elements in a computer game are quite diverse and complex. They can include a musical score (soundtrack), a multitude of sound effects bringing realism to the game and also use of voice for the different game characters. All these components fall under the general ambit of artistic and literary works and as such they are protected under copyright.
The visual elements are probably most important when it comes to video games as they predominantly shape the experience of the player and dictate the terms of the actual interaction between the player and the game. The visual elements may include digital still images, moving images and also animation, illustrations, maps, conceptual art. First, they can be protected as artistic works under copyright as this would apply for both still and moving images. Copyright protection would arise from the moment of creation of the visual work and last for 70 years after the death of the author under EU legislation.
Second, some of the visual components in a game such as the appearance of the game characters, cover screens, the graphical user interface, the appearance of some typical game objects and components of the graphical environment can also be protected through design rights. There are two viable options for such protection in the EU – the registered and unregistered community design. A design has to be registered with the European Union Intellectual Property Office (EUIPO). The registration process before the EUIPO is very fast and it is sometimes possible to obtain a registration certificate only within several days after an application. The term of protection for a registered community design is 5 years from the date of filing the application and this term can be renewed for a total duration of up to 25 years from the date of initial filing. The second option is the unregistered community design which can be obtained without a registration procedure by disclosing the design to the public within the EU or by marketing products that incorporate the design. The unregistered community design would grant its holder protection against unlicensed reproduction for a period of 3 years.
When it comes to the visual components in a video game, an important concept to have in mind is the “scenes à faire” (scenes that must be done) doctrine. According to this copyright doctrine, certain elements that are essential and indispensable in order to recreate a certain genre of work are not copyrightable and can be freely used by anyone who is creating a work of that particular genre. For example, if a developer is working on a football video game such scenes à faire components would be the rectangular pitch made of turf with goals at both ends and the specific markings on the pitch, the spherical ball, the teams of 11 players with a goalkeeper and field players. All these would be mandatory elements that have to be employed in order to create a football video game and as such there is no way they could be covered by copyright as that would effectively monopolize the mere idea of a football game.
In addition to the audio and video components, the storyline of a video game or its script and dialogues can also be protected under copyright in the same way as a typical literary work such as a novel or a play. What needs to be noted, however, is that many contemporary video games employ a particular type of story design known as “open world” where there is no strictly predefined script but it is up to the player how he or she will shape the journey of the main character throughout the game world, of course still within a certain loose framework.
Another element of a video game, whose protection is crucial, is the title of the video game. This is so because the title is a key distinguishing factor that needs to be communicated to the audience in order to build the game brand and successfully differentiate the video game from other offerings in the eyes of the consumers. The title of the video game, as well as its logo, can both be registered as trademarks. The title could take the form of a word mark, two-dimensional mark of graphics and text or even a three-dimensional mark. A European Union trademark registration would last for 10 years but it can be renewed indefinitely. Once the game title is registered as a trademark this would allow the game developer to prevent its competition from using the same or similar trademarks for their products.
Finally, one of the most important underlying elements of a video game, which is distinct from the code, the audio works and the visual works, is the gameplay. The gameplay embodies the specific manner in which the player interacts with the game. This interaction is shaped by the game rules, the story of the game and its development, the challenges that the player faces and the way he or she overcomes them as all these factors in the end build up the unique relationship between the player and the game. Therefore, to a large extent it could be the gameplay and not so much the graphics, sounds or technology on their own that creates the unique overall experience for the person playing the game and makes the game addictive. The gameplay is thus distinct from the other components in a video game and it has its own value. At the same time, there is no specific IP right in order to protect the gameplay as a whole and still a significant part of the investment in a video game goes into crafting the gameplay.
The general concepts and ideas underlying the gameplay cannot be protected under copyright due to the idea-expression dichotomy. The idea of how the game should unravel or the methods determining how the game could be played are obviously not copyrightable. However, there might be some other creative avenues that allow for protecting not the general ideas behind the gameplay but their concrete expressions in the game. One such example could be registering a multimedia trademark that involves a short video sequence encapsulating some key gameplay elements – for example the specific way you aim for, hit and destroy a target in an action game. Such a trademark registration would effectively prevent the competition from using identical or confusingly similar gameplay techniques in their action games. Another avenue for gameplay protection could be the use of patents for software-related inventions where those inventions embody specific gameplay elements. An example could be the use of a small map screen in the graphical user interface of a football video game that makes it possible for the human-controlled player to get an overall impression of the positions of all other players in the team to whom the ball may be passed. Alternatively, a graphical cursor could be used that indicates the other team players to whom the ball may be passed or in case those players have become invisible due to the in-game camera movement a pointer could be used at the end of the visible display area to indicate the potential direction in which the ball could be passed. The produced technical effect in this case would be in the form of better visibility and improved navigation irrespective of the inherent limitations produced by the in-game camera movement and without the need to zoom out and lose visual details. However, it should be noted that technical effect on its own is not enough for patentability and additionally, the requirements for novelty and inventive step should be satisfied.