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Copyright of The 21st Century Art: Video Games

Video games, the word itself drives the attention of the youth of today's generation. Video games and the gaming industry have become a major recreational activity in today's time and are increasing by leaps and bounds and occupying a major part in the lives of the youngsters today. The gaming industry in India established its place in the Indian market some 50 years ago from now around 1970's.

And according to a Forbes report, Indian mobile gaming industry is among top five gaming industries in the world and crosses worth of over $890 million. Yes, the size of the industry itself calls for its protection under various laws. And in this context IPR plays a very vital role. Considering the needs and expansion of the sector it calls for an obvious yet mandatory protection of the games and its part.

And the most important of all is the Copyright Law which protects the games, artistic works and any work of ancillary creation under it. A videogame is not merely a game, rather it a combination of game codes, music, sound recording, visual designs, etc., Thus all of this calls for an immediate yet mandatory protection under the governing laws.

A major question that arises in the minds of people with regard to video games is that whether it is a software program or an audio-visual work or an artistic wok? What parts of the games is protected under copyright? Well, the answer to this will be discussed lately in the article.

The 21st Century Art: Video Games
Video games that are in today's times called as the 21st century art have attracted the attention and zeal of the youngsters today to very great extent. Be it a child of 5-6 years or adult above 20 years all are into gaming today. The gaming industry has brought the people of all age group under the same roof.

Yes, the games, their ideas or be how they play it might differ but the excitement and enthusiasm is the same in all age groups. Video games thrill, excites and exhilarates people today. It's been around five decades since the gaming industry got its hold in the Indian market, yet with its far reaching impact on the generation todays it has captured a great market share.

With the rapid technological development the evolution of the video games took place. Video games have created an enchanting, gleaming and an interactive world which can very easily attract the attention of the target group. The contemporary gaming is an amalgamation of ideas, music, sound recording, visual designs, storytelling etc., which has made it unique in its own style and which calls for its protection for its own rights.

Video games not just are a gaming platform but also communicate ideas and delivers social message through its characters, plot, music etc. This contemporary imaginary world of gaming has stepped into the boundaries of cultural and traditional art form through its social and emotional ideas.

Copyright of Video Games
"The Berne Convention, adopted in 1886, deals with the protection of works and the rights of their authors. It provides creators such as authors, musicians, poets, painters etc. with the means to control how their works are used, by whom, and on what terms. It is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them."[1]

As according to Article 2(1) of the BERNE CONVENTION which states "every production in the literary, scientific and artistic domain, whatever the mode or form of its expression"[2] has provided the video games to be copyrighted under the law by making them eligible under the convention. Video game is not just merely a game; instead it is a compilation of computer software, artistic work and many other works that need copyright in their respective domain.

Video games today majorly consist of two main parts:
  1. The computer software:
    The computer software that helps the gamers to interact with different elements of the game through a technically smooth platform.
  2. The audio-visual elements:
    The audio-visual element of game comprises of sound, music, video clips, characters of the game etc.
The levels of complexity of video games are increasing significantly over the years due to the fact that the gaming industry is increasing exponentially and occupying a larger stake in the market. In some countries video games are considered as a computer software due to its technicality and the platform it uses, whereas in some jurisdiction they are considered as a piece of artistic work due to the audio- visual elements of the game.
  • What can & cannot be Protected under Copyright?

What can be protected?
It's not only the game that is protected as a whole under copyright, but each and every element of the game is protectable under different copyright protection, i.e., the script, game codes, music, sound recording, visual designs, characters etc., all are protected under copyright. Video game is not merely about the game rather it's also about the contents and the components of the game that makes it complete and fulfilling. It's not just about the software of the game rather it's also about the characters, script, game codes, music, sound recording, visual designs, that make each and every head the right of protection under various copyright laws.

Components of game to be protected under copyright
  1. Characters:
    The characters of the game can be protected under copyright laws. The characters play a very major role in making any game a success, and thus, they are eligible for protection under copyright. If we talk about video games and childhood the very first character that comes in our mind is Mario. Yes, the super and all-time favourite Mario.

    Mario, the plumber whose only motive was to protect the princess by clearing different levels and hurdles. The character Mario and the game is protected under copyright by NINTENDO and all the rights associated with the game vests with Nintendo and which is valid till the year 2080.

    Through all of this we can clearly say that not only the character and the game Mario is protected by Nintendo but it also has all the exclusive rights of merchandising of the products, such as toys, t-shirts, and any other accessory related therewith and no one can sell any such product with acquiring proper license from Nintendo.
  2. Gameplay:
    Gameplay is nothing but the manner in which the game is played or how the player interacts with the game. It involves the rules, strategies and also the platform the player uses to play the game. Gameplay can also be referred as the features of the games such as the plot of the game, the story on which the game is based, the levels and the obstacles involved with game. Copyright of the gameplay gives the right to the creators to build more games based on the same story line and no one can copy the game. It gives the creators of the game a creative liberty.
  3. Visual Design:
    Visual designs and artwork are also eligible to be protected under copyright but not completely. Designs and artworks can only be protected under copyright to the extent of duplicacy; which means they are granted protection under copyright to the extent that no one can copy it as it is and hence protect it from being duplicated. Suppose, a game of a specific genre requires that a few elements to be always present in the games of that genre then, then only such elements can hold protection under copyright and not the whole of that.
  4. Sound and Music:
    Original sounds and music of a game are also protectable under copyright. As already discussed about Mario let's take this as a further example and understand how sound and music are protectable under copyright. The game Mario has a different music for all its different levels. The music of the main theme of Mario was given by Mr. Koji Kando.

    The music attached to different levels of the game have their own specific copyright protection, such as the sound of the collection of the coin or be it the jumping music all are hence protectable. The Mario music has a world-wide acclamation and is recognised with different covers of its own on YouTube. If anyone uses the music falsely without acquiring proper license from the creator then he'll be charged with royalties to Nintendo and further this royalty will be distributed among the creators of the sound.

What cannot be protected?

The theme or concept of the any game is not eligible for protection under copyright. Any idea or theme portrayed in any game is not protectable, hence being the basic rule of copyright. The famous French phrase "Scenes a faire" connotes the very basic law of copyright, which means, certain elements are not protectable under copyright that are presumed to be of a specific genre.

If for an example, we take a game of car racing then it is to be presumed that the game will definitely be having cars, tracks, speedometers, vehicles, steering, drivers etc. hence, any game of car race cannot exist without these basic elements and hence, are nor protectable under copyright.

Term of Copyright of Video Games
The term of video games and other works of media in the United States are no different. Since most video games are works of corporate authorship, thus, they have a copyright that expires in 95 years from the date of its publication or 120 years from the date on which it has been created, whichever is earlier.
Are Video Games a Creative Work or a Computer Software?

Hence, the answer to this question that whether video games are a creative work or computer software is still in dilemma. As the contemporary video games are not just mere the game codes but also includes audio-visual graphics, has a story, includes characters and what not. Thus, it is difficult to decide as to whether a video game is computer software of a creative work.

Long-time back, around 50 years ago when a boy from the Massachusetts Institute of Technology (MIT) in the US wrote game code to create the very first video game Spacewar, which was based on two players operating a missile firing spacecraft in order to destroy the other. Earlier the creators of video games were mostly engineers and computers geeks, but now this is not the case. Today's gaming industry has totally evolved and changed.

With the changing needs of the target group the gaming industry has also changed its ideas and views. Contemporary games along with a software also includes characters, music and sound, visual design, gameplay etc. Thus, it can be said that the gaming industry which we see today is an amalgamation of computer software as well as creative work.

The gaming industries have a wide range of legal approach. Where in some jurisdictions it is considered as computer software such as China, Singapore, Israel, Uruguay, Canada, Argentina etc. whereas, in some countries is it considered as a work of creation because of its script, characters, sounds and music etc., such as Brazil, Belgium, France, Italy, India, Japan, etc.

Thus, it's not easy to say whether a video game is computer software or a creative work since different jurisdictions perceive it differently and have their own laws of dealing and protecting it.

Some Relevant Case Laws on Video Games:
  1. Atari v. North American Phillips Consumer Electronics
    The case of "Atari v. North American Consumer Electronics"[3] is a landmark judgement in the area of copyright of video games. This case talks about how the 'expression of idea' of a game is protectable under copyright and not just merely the' idea' of the game.

    This case talks about the very famous game Pac-Man that was created by Atari around 1980's. Atari gained significant popularity because of the game and sold almost around 7 million copies of the game. With the rise of Pac-Man another game K. C. Munchkin was launched by North American Phillips. Both the games were of the similar idea. It was a game of maze like playing area, having pellets and fruits and ghosts killing them in order the player would lose his life.

    The game all about the player controlling the Pac-man character, moving him through the maze like playing area collecting fruits and pellets and gaining points for the player. The game that was created by North American Phillips named K. C. Munchkin was of a similar design. It too had a maze like playing area though a little different in style and the being bigger than that of Pac-man. It too had the ghosts like creatures, pellets and included some elements as dead-ends. The underlying idea behind both the games was almost similar.

    Atari sued North American Phillips for copying the idea of his game. The question that was raised in front of the court was that whether the idea or the expression of the idea of the game is protectable under copyright? Earlier the court rejected the plea of Atari and said that ideas are not protectable under copyright. What is protectable is the expression of idea and the characters of the game.

    Later, the court reviewed its own decision and said that North American Phillips has not only copied the idea of the game but also copied the expression of idea of the game, which further leads to infringement of copyright under the copyright laws. The court further also mentioned that K. C. Munchkin has also copied the characters of the game the protagonist and the antagonist (ghost).

    The court said that though the games are not virtually identical to each other but the expression of idea is the same. Therefore, K. C. Munchkin has copied the expression and feel of Pac-Man. The court granted an injunction order to North American Phillips and soon K. C. Munchkin was seen removed from the store shelves.
  2. Atari, Inc. V. Amusement World, Inc
    The case of Atari, Inc. v. Amusement World, Inc.,[4] is one of the leading cases of copyright infringement in the history of copyright. In this case Atari holds copyright in arcade games 'Asteroid'. Here, Atari sued Amusement World for their video game 'Meteors' for infringing the copyright of Atari in arcade games. The case reaffirms that copyright protects the "expression of idea" of game rather than the mere idea of the game. The court said that as audio-visual works are eligible for protection under copyright, likewise full and complete video games are also protectable as motion picture.
In this case the court noticed various similarities and dissimilarities between the two games after which the court came to its final conclusion.

In this case Amusement World raised its arguments in front of the court against Atari. The first point of argument raised by Amusement World was, that, for a work to be copyrighted there should exists a valid copyright work and that should be protected under copyright. Amusement World stated that Atari has registered Asteroid as an audio-visual and not the computer program of the game.

Amusement world raised an objection stating that the computer program should have been the one that should be copyrighted and not the audio-visual work. To this, the court rejected and stated that Atari has a copyright over the visual presentation of the game which is an expression of idea of the creator. And hence, is protectable under copyright.

Later, Atari tried to demonstrate in front of the court that Amusement World has copied its game by putting forward the similarities between the two games. Later, the court contended that what should be protectable under copyright is the expression of idea of the game and its artistic works not just the idea of the game. Therefore, the similarities between the two games does not proves to the court that one game is the copy of the other rather, its just the idea of the two games that is similar to each other.

After analysis of the case the court came to the conclusion that Asteroids and Meteors were not similar to each other it was just the idea of the game that was similar. Since both were a space game, so it was obvious that the games would definitely have spaceships, space rocks, spaceships combating to each other etc.

The court mentioned that any game of such expression would have all of that. Thus, the court giving its final verdict said that it was just the idea of Atari's Asteroids that was copied by Amusement World's Meteors and not the expression of idea. And thus, Amusement World has not infringed any right by copying the unprotectable aspect of the game.

From the above mentioned facts about the gaming industry it is evident that copyright plays a very vital role in protecting the works of the gaming industry among all other intellectual properties. Copyright protects maximum no. of works associated with the gaming industry. Since video games are a mixture of creative works as well as software programs it makes the creators secured as they are all protectable under different copyright laws. Copyright has a great impact on the gaming industry, as with the changing needs and developments the laws relating to copyright have also adapted themselves.

Video games have become a major art form of the 21st century because of it art and craft and its expressive medium that is spreading worldwide. Video game is creation of technology and creativity unlike other creative works of the industry. When the human race merged the technology with his creative work then it gave birth the very Gaming Industry. Thus, computer codes transformed into creative works when mingled with sounds and music, story and expression then formed video games which is now available on a range of devices- be it a tablet, smartphones, computers etc.

  2. Berne Convention
  3. 672 F.2d 607 (7th Cir.)
  4. 547 F.Supp. 222 (D. Md. Nov. 27, 1981).

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