India: Not Just A Videogame

Last Updated: 31 December 2015
Article by Vikrant Rana and Ritika Mogha
Most Read Contributor in India, September 2018

S.S. Rana & Co lawyers call for more help for the videogame industry in India.

Videogames have come a long way since the days when Mario, Contra and Half-Life were played, and gone are the days when videogames were played by children only. If statistics are to be believed, about 29 percent of game players are below 18 years of age, whereas 29 percent of game players are 36-plus years. Videogames are no longer just a popular medium of entertainment among teenagers – even adults are hooked.

Today, the market is flooded with consoles (Sony Playstation, Microsoft Xbox, and Nintendo Wii to name the most popular ones) offering a plethora of choices to gamers. The gaming industry has been advancing at a phenomenal rate so states the Entertainment Software Association, which remarks that no other sector has experienced the same explosive growth as the videogame industry.

Modern videogames are said to consist of highly dynamic audio-visual elements (including pictures, video recordings and sounds) and software, which technically manages the audio-visual elements and permits users to interact with the different elements of the game,. These elements in video games present complex issues of authorship, as they are also protected by various forms of intellectual property.

The rules of the game

Videogames, primarily being works of imaginations and ideas, seek protection under intellectual property laws to avoid violations.

Each game contains distinguishable expressions of ideas, which if not protected may be vulnerable to infringement by another. Article 2 of the Berne Convention in its expression of "literary and artistic work" accords protection to videogames by way of copyright.

The various creative elements in a particular videogame represent different forms of IP rights. For example: patent law covers matters such as game play design elements, networking or design database; trademark law protects company names, game titles or sub-titles; and copyright subsists in works such as music, characters or code. As a result, videogames present a complex bundle of intellectual property.

A World Intellectual Property Organization (WIPO) publication (Legal Status of Video Games: Comparative Analysis in National Approaches, 29 July 2013) states that there is a legal controversy revolving around the classification of videogames and it is uncertain whether they fall under the purview of multimedia work, audio-visual work or a computer program.

Global perspective

Copyright does not subsist in the ideas or functional aspects of videogames. However, they can cover the expression of ideas. In this regard, the US Copyright Office specifically states:

"Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any Idea, system, method, device, or trademark material Involved in developing, merchandising, or playing a game. "

Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only in the particular manner of an author's expression in literary, artistic, or musical form. Thus, copyright law protects the game code, music, characters images, scenes, dialogues.

Tetris Holding v Xlo Interactive involved a copyright issue In videogames. In this case, the plaintiff, creator of the popular Tetris game, brought a suit against the defendant, creator of the game Mlno, on the grounds that the defendant copied the ideas of Tetris by using similar blocks In same configuration. The plaintiff also asserted federal copyright and trade dress claims.

The court decided In favour of Tetris, holding that the defendant had Infringed the copyright look and feel nearly identical to Tetris, and had copied protectable elements of expression in Tetris.

In videogames, the game titles, subtitles or character names such as Pokemon can be protected under trademark law. Copying an identical or even a confusingly similar game name can be an issue of trademark infringement.

An interesting recent example concerning the issue of trademarks in videogames is the case of The Candy Crush Saga, wherein King.com held the a registration for the term 'Candy' in the EU. According to Forlbes, King. com issued takedown notices to various games using the term 'Candy'. One such notice was received by the developer of the game All Candy Casino Slots-Jewel Craze Connect, wherein Klng.com alleged trademark infringement and damage to its brand .

The Indian Industry

The videogame industry in India is expected to grow In the near future. According to the Indian Media and Entertainment Industry Report 2013, the Indian videogame industry recorded a growth of 17.7 percent and is expected to record a growth of 22.4 percent by 2017. The Indian vldeogame scenario is growing gradually, with more and more domestic game developers and Indian game titles entering the market.

However, compared to its western counterparts the Indian gaming industry is still miniscule but statistics Indicate that it is increasing in size and is expected to experience healthy growth in future.

Copyright

The Copyright Act of 1957 does not specifically deal with the nuances of videogames and the lack of any precedents or regulations in this regard further aggravates the uncertainty.

However, the act under Section 2(c) defines "cinematograph film" as 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. 'Cinematograph' should be construed as Including any work produced by any process analogous to cinematography including video films. It Is uncertain whether 'process analogous to cinematography' refers to videogames.

Also, in terms of assignment and licence rights under the Copyright Act, a videogame can be based on a novel, comic, movie or a book and the same can be done by obtaining a licence from the authors of the original content. Under the Indian scenario, a videogame developer can create its game based on a movie or book by securing a commercial licence from the authors.

Trademarks

In the case of videogames, trademarks can be used for protecting the title, sub-titles of the game, or the name of characters. For example, famous videogames such as Super Mario, Tetris and The Legend of Zelda have been successfully registered with the Indian IP Office. So, if such marks are infringed by a similar or a deceptively similar mark, then relief can be obtained under Sections 29 and 135 of the act.

Patents

Patent law can be used for protecting the program code of the game, but software per se is not patentable In India. Moreover, under the Indian Patent Act of 1970, Section 3(m) specifically excludes game designs as patentable inventions and provides that a mere scheme or rule or method of performing a mental act or method of playing a game is not patentable. The same was also held by the Delhi High Court In the case of Mattei v Jayant Agarwalla In 2008.

Movies and videogames

There are several movies that have been adapted from videogames. For example, the movie Super Mario Bros was an adaptation of Nintendo videogames of the same name. Similarly, there are a few videogames that have been created based on movies or books. Dhoom 3 and Sholay: Bullets of Justice are based on famous Bollywood movies Dhoom 3 and Sholay.

Adaptations would fall under the acquisition of rights to make a derivative work or by obtaining a licence from the author. For example, the American videogame developer Electronic Arts (EA) obtained a licence to the Lord of the Rings trilogy to make the game The Lord of the Rings: The Battle for Middle Earth.

Personalities and videogames

Celebrities and famous personalities are widely used as characters In videogames worldwide. In India, games such as Namo Run Attack and Super Namo featuring newly elected India Prime Minister Narendra Modi gained popularity during the recent elections.

However, using images and names of celebrities without their authorisation can lead to the Infringement of their privacy and personality rights, thereby even resulting in the withdrawal of such games by the game developer and payment of damages in case of defaming the celebrity.

How far Is too far?

Indian games featuring Hindu deities have attracted substantial controversy among Indians on the ground that It is not acceptable to reduce them to gaming characters. For instance, the game Hanuman: Boy Warrior, featuring Hindu God Hanuman, attracted objection from Hindu leaders worldwide, along with demands to withdraw the game.

Similarly, the game Smita, developed by Hi-Raz studios, attracted controversy as it featured Hindu deities Kali, Vamana and Agni.

Another instance attracted media attention was the Indian Mario Singh by MangoFroot, which was essentially Nintendo's Mario with a turban and minor colour tweaking.

Though this may have amounted to potential copyright infringement, the original authors did not take action against it.

The videogame industry is still a developing one and Indian developers are entrusted by international publishers with the job of developing games.

Outsourcing game development is highly prevalent and there are very few entities in India that develop their own videogames. The lack of any specific legislation and precedents for the protection of various elements of videogames poses a big challenge for the industry.

Creative elements in videogames

Audio Elements: musical compositions, sound recordings, voice imported sound eff&cls, and internal sound effects.

Video elements: photographic images, digitally captures moving images, and animation text.

Computer code (source and object code): primary game engine or engines, ancillary code, plug, and comments.

Indian markets



Examples of adaptations

Originally published by IP Pro The Internet.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Vikrant Rana
Similar Articles
Relevancy Powered by MondaqAI
InvnTree Intellectual Property Services Pvt. Ltd.
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
InvnTree Intellectual Property Services Pvt. Ltd.
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions