Super Mario Brothers, Road Rash, Tekken, FIFA Soccer Games and other videogames have been and are still being played by a majority of people with age being no bar. Videogames, which in the face, are seen as the best playmates, contain within them various facets and elements of Intellectual Property Rights (IP). When looked from an IP perspective, each videogame consists of various segments which are laced with distinct expressions of ideas, which unless protected may be susceptible to infringement by another. Gamuts of IPR covering the realm of videogames are discussed below:
Copyright– The Berne Convention, for Protection of Literary and Artistic Works, is an international agreement governing copyright. Article 2 under the same, manifests "literary and artistic works" affording protection to videogames through Copyright. But the moment a game is made public, nothing under the copyright laws can prevent it from another individual developing a game with similar ideology, hence protecting only the particular manner and expression of the author with regard to literary, artistic, cinematographic, musical form; i.e. its protective shield will range across the game code, music, characters' images, scenes, dialogues, and the like.
Trademark– Game titles, subtitles or character names such as Temple Run or Candy Crush, can be protected under trademark law, whereby protection is given to the company or game creators' name, logos, game titles, slogans or identifiable catchphrases associated with game or the company, or subtitles, mark, hence copying or riding on an identical or even a confusingly similar game name, with the malafide intention of gaining profits dishonestly, can be an issue of trademark infringement.
Patent– One may wonder how something as intricate as a patent could find its way into videogames, but the videogame should involve novelty, non-obviousness and industriousness, in order to be patentable. A videogame's inventive game plays, game design elements, technical innovation in software, database design, hardware components etc. constitute some of the elements enshrined in a video game which can be patented to get IP protection.
Legal Scenario in India
Legal controversies in any sphere are not limited and also revolve around videogames with regard to its classification and bifurcation into a specific IP element. In comparison to international rival countries in this domain, the gaming industry in India is still developing but the statistics have shown that in no time our country will be at par with the others, expecting a rigorous progress in the near future.
The Indian Copyright Act, 1957, does not specifically deal with or enshrine under the legislation, videogames or their issues. As per the Act it is unclear whether a 'cinematograph' should be taken to constitute work produced by any method corresponding to videos or video films and whether 'process analogous to cinematography' refers to videogames. Further, in terms of assignment and licences enshrined under the Act, a videogame can be inspired from a book, comic strip, movie, music, etc., the same being obtained via assignment or licence or by way of commercial licences from the original author for such content. A mere glance at the games section at the Apple iPhone store, Google Play Store or the Microsoft Apps store would show that celebrities and famous personalities alike have also forayed into the world of videogames with games such as SRK Run, Salman Run, Aamir Khan Run, etc. despite usage of celebrities or personalities' names and/or images without their consent, constituted as an act of privacy or personality rights infringement. Further, videogames including Indian gods/deities, such as Chota Bheem Jungle Run, Krishna Run, etc. have also garnered much controversy. Moreover, many movies have also inspired videogames like Bajrangi Bhaijaan, PK, Krrish, etc.
Since there is no specific legal provision in any of the legislation and also lack of any precedent also
Derivative Works or Adaptations would come under the purview of copyright and a licence can be obtained from the author, for example, the American videogame developer Electronic Arts (EA) acquired the licence for the famous Harry Potter series from the movie franchise Warner Bros. as well as the fiction author J.K. Rowling in 2001, to create videogames on the Harry Potter films.
The Trademark Act, 1999 would protect the title, sub-titles, name of characters, et al in videogames, like Game Cube by Nintendo, Zapak, WWE, Tetris, Legend of Zelda, Warner Bros., etc. are successfully registered with the designated Indian IP offices. In case of a future infringement occurring with respect to these marks, relief can be sought by way of Sections 29 and 135 of the Act dealing with passing off/infringement.
The Indian Patents Act, 1970 protects videogames under the 'programme code' of a game, as software is not patentable as per Section 3 of the Act. Moreover, Section 3 also prohibits game designs as patentable inventions as per Section 3 (m) of the Act.
Videogames are and have been an almost indispensable part of everyone's childhood. In the intellectual property arena videogames are primarily viewed as being imaginative and creative works that are seeking protection under the aegis of intellectual property laws so as to avoid possible infringement or passing off suits against them. But due to the lack of any precise legislation or legal precedents overlooking videogames poses a big challenge to this industry. Moreover the international sub-contracting is very widespread and there are very few entities in India that develop their own videogames. As per the Statista Inc. which is one of the leading statistic companies on the internet, the videogames industry worldwide generated about USD 55.05 billion in 2015 proving that videogames indeed have come a long way since their inception.[i] This data justifies that with the advent of technology and knowledge of intellectual property, more and more gaming designers, animation artistes and game developers have entered this risky industry, maximising and increasing profits since the Tennis for Two video game programme invented by William Higginbotham in the 1958, to the coming of age Nintendo's and PlayStation's to-day; proving that the videogames industry has indeed come a long way posing serious challenges to intellectual property laws owing to their complex and cross-cutting nature.
[i]Videogames Revenue Worldwide, Statista Inc., 2012-2015, Available at: http://www.statista.com/statistics/278181/video-games-revenue-worldwide-from-2012-to-2015-by-source/, (Last accessed on Oct. 7, 2015).
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