A case for aligning copyright and the videogame industry

Videogames have certain unique characteristics that set them apart from other types of creative works. They are born digital and their inherently interactive nature fosters user engagement and participation to a degree unprecedented in any other type of creative work.

This, in turn, creates challenges for the videogame industry that are not present (or at least, far less salient) in the other creative industries. In particular, videogames are susceptible to different forms of potential copyright infringement by a range of parties at all the stages of their lifecycle, from the initial creation of a videogame through to its distribution and the granting of access to players and finally to different forms of player interaction.

In addition, the videogame industry is global in nature, whereas copyright laws and enforcement are territorial. This requires the industry to navigate the copyright laws of multiple jurisdictions and to develop enforcement strategies that are effective across the board.

WIPO study: three stages where infringement occurs

For this reason, the World Intellectual Property Organization (WIPO) commissioned a  study to identify uses and practices that are uniquely relevant to videogames, evaluate their practical impact on the industry, consider their implications under copyright law, and assess the effectiveness of enforcement strategies that have been employed by the industry.

The study identified potentially infringing uses and practices throughout the entire videogame lifecycle and groups them into categories according to in which stage they occur.

The first stage is the creation of a videogame, where the study considers uses and practices that occur during the design and development of videogames. One important concern for the videogame industry is the use and incorporation of third-party content into their own product and thus exposing themselves to potential liability for copyright infringement (and indeed, other forms of intellectual property infringement).

While this consideration is not linked to enforcement as such, as it focuses on litigation avoidance, it is nevertheless an integral part of the industry’s overall intellectual property strategy.

If there is a likelihood that copyright (or another IP right) might subsist in the third-party content, and if no clear exceptions or limitations apply (bearing in mind that subsistence requirements and exceptions and limitations will vary across different jurisdictions), then it will generally be advisable for the videogame company to secure a licence for the use of the third-party content.

Even in cases where no licence is strictly necessary, in order to avoid public backlash, it may still be advisable for the videogame company to obtain the consent of the third-party creator or other relevant decision-maker, particularly where the latter are relatively high-profile.

Why cloning needs a multi-layered enforcement strategy

Another significant concern that arises at this stage of the videogame lifecycle is cloning, whereby a competitor creates a game which replicates the game experience of the original. This is particularly problematic in the mobile and casual game sector.

The success of copyright litigation against clone manufacturers is likely to depend on whether the relevant jurisdiction extends copyright protection to the audio-visual display generated by a videogame, or whether it protects each constituent element of a videogame as a separate work but does not protect the videogame ‘as a whole’.

Videogame companies have met with success in the jurisdictions that take the former approach (primarily the US, and to some extent China), but have been unsuccessful in jurisdictions that take the latter approach (such as the UK, and to some extent the EU).

Dealing with cloning thus requires a multi-layered enforcement strategy, and videogame companies are advised to incorporate other types of intellectual property claims—such as unfair competition or trade dress infringement claims—that may be applicable.

They may also be able to halt the distribution of a clone more efficiently by requesting the relevant digital distribution platform to de-list the clone from its catalogue (provided the company is able to make a convincing case of intellectual property infringement).

The second stage involves the distribution of and access to a videogame. The key uses and practices involve emulators and ROMs (read-only memory files) that enable a game to be run on other hardware and/or software platforms than for which it was designed.

This is particularly relevant for retro games that are not playable on modern consoles and operating systems. Other critical activities include key selling, which entails unauthorised re-selling of access keys, account transfers and second-hand videogames, all of which infringe the exclusive right of distribution and/or making available to the public.

They are also usually prohibited by licence agreements. From the industry’s perspective, key selling, unauthorised account transfers and second-hand sales affect their ability to fully exploit and commercialise the videogames in question.

Modding and in-game user creations

videogames are meant to be played and using them creatively is part of the player experience. The third distinct stage in the videogame lifecycle, therefore, looks at the interaction between the player and the videogame, during which the game itself or its constituent element(s) may be altered.

The study concentrates on two types of modifications: modding, which entails alterations of one or more elements of a videogame in ways not intended or enabled by the original developer, and in-game user creations, which result from players making use of tools provided by the game itself for creating new content. These uses and practices potentially constitute copyright infringement; at the same time, they are also indications of an active and engaged player base.

While using the videogame, players’ interaction can go beyond changing the content of the game as such. They can interfere with the integrity of the game (rules, game mechanics) and the overall player experience. One of the most significant practices falling within this category is cheating. These exploits differ from the previous category even though they may require a modification of the game or some of its elements and are usually carried out by players, third-party developers or commercial websites.

Failure to prevent cheating might have a dramatic impact on the popularity and success of the videogame as it creates frustration and resentment in the player base and consequently leads to fewer players and less participation, ultimately affecting the underlying business model.

The last stage considers uses and practices that go beyond just ‘playing’ the game and re-purpose the game or some of its content outside the context of the game. Key uses and practices include user-generated content (UGC) and e-sports, the former carried out by players and player communities and the latter performed by professional players and tournament organisers in a competitive context.

There is a range of responses when it comes to these potentially infringing uses and practices—from videogame companies encouraging, tolerating, negotiating and compromising on certain areas, to enforcing their exclusive rights—and the analysis indicates that not all uses and practices in question pose a commercial threat.

In fact, some unauthorised activities might even be directly or indirectly beneficial to the right holder in, for example, addressing bugs, and improving and expanding the user experience through streaming, modding or creating fan works.

There is a distinction between uses and practices that are detrimental to the users and their game experience (such as cheat software), those that are detrimental to the publishers (such as cloning) and those that are, conversely, an intrinsic part of a thriving user community (in-game creations and UGC).

The level of risk associated with copyright infringement and the likelihood of success of copyright and other litigation need to be carefully evaluated by the right holder, because not all potentially infringing activities pose a threat that needs tackling.

Litigation might not always be the best option, especially when success is not guaranteed. In fact, enforcement might not result in the desired or anticipated solution, leading only to temporary or unsatisfactory outcomes or an entirely counterproductive legal precedent. Often, alternative approaches are available (which might also be more cost-effective) and videogame companies should, of course, investigate all possible technological solutions in tandem with legal options.

The videogame industry has been innovative and proactive in finding alternatives to litigation by reaching out directly to the alleged infringers or implementing contractual and/or technical solutions.

In some cases, right holders have embraced creative uses of videogames through unconventional licence schemes. Examples of these schemes are usage policies for UGC and live streaming. Copyright litigation can be something of a blunt instrument where the videogame industry is concerned, hence the need for these other contractual and technical solutions.

Read the study, ‘ Copyright infringement in the video game industry’.

Gaetano Dimita is a senior lecturer at the Centre for Commercial Law Studies, Queen Mary University of London. He can be contacted at  g.dimita@qmul.ac.uk

Yin Harn Lee is a senior lecturer at the Law School, University of Bristol. She can be contacted at  yinharn.lee@bristol.ac.uk

Michaela Macdonald is a lecturer at the School for Electronic Engineering and Computer Science, Queen Mary University of London. She can be contacted at  michaela.macdonald@qmul.ac.uk