The video game Industry thrives on an amalgamation of cutting-edge technology and creativity wherein the computer code underlying a videogame cultivates ideas into visual and aural expressions which can be accessed on a range of devices such as consoles, computers, smartphones etc. The advancement in technology has facilitated in making the user interface enriching and the games as we see today are as vivid as the imagination of the game developer and features realistic graphics, motion capture technology giving the characters fluid movements, music as elaborate as film scores and an original story line and voice – overs.

Copyright is believed to be the most important Intellectual Property protection available for video games and it extends to the varied verticals of a video game.

The code underlining all of the features of the game (graphical user interface, music, speech, etc.) attract copyright protection as a literary work because it is the expression in writing, albeit coded form of these features. All of the original design documents fixated as computer files, sketches or print outs and the user manual of the video game also attract copyright protection as literary works because of their expression in writing and the concept artwork for a videogame could separately attract copyright protection as artistic works even if its not ‘’pleasing to the eye’’ per se. The motion capture data may attract copyright protection as a dramatic work and so could the plot or the script of the game and the musical components of the game will attract separate copyright protection as musical works and any type of sound sample or reproducible combination of sound samples attracts copyright protection as a sound recording. Though the final product
does not attract a wide ambit copyright protection, such protection can nevertheless be extended to the individual elements of a video game.

However, India lacks any specific legal classification regulating the video game industry and in the absence of any jurisprudence, it is uncertain whether video games can be classified as Cinematographic Works under the Copyright Act, 1957. According to section 2 (f) of the Copyright Act, 1957, a cinematographic film means any work of visual recording inclusive of a sound recording which accompanies the visual recording and “cinematograph” is construed to mean any work produced by any process/method analogous to cinematography including video films. Therefore, it may be interpreted that the reference to “any process analogous to cinematography” could mean that video games can fall within this definition but without relevant precedents, this contention remains uncertain.

The Delhi High Court in Sony Computer Entetainment v. Harmeet Singh[2012(51) PTC] passed an order of ex-parte injunction on the issue of protection of technological measures in the Sony gaming consoles including Sony Playstation 3 . The Court referred to the Anti-Circumvention laws under section 65-A of the Copyright Act, 1956 which came into effect post the 2012 amendment vide which the defendants were restrained from modifying the consoles by changing the software and offering them for sale. This is incidentally the first case in India to propound on Copyright aspects in video games and it could pave the way for jurisprudential clarity on this subject.

Much debate and discussion has been ensued on the originality of content in a video game. For instance, Atari, the creator of “Asteroids” filed an copyright infringement suit against Amusement World, the creator of “Meteors”, their claim failed due to lack of substantial similarity with the defendant’s work as copyright protects only the expression of ideas and not the ideas themselves and therefore. In this case, the theme of the game being a “video game in which a player fights his way through space rocks and enemy spaceships” could not attract a copyright protection.

These days the avid gamer posts “Let’s Play” videos on websites such as YouTube, which
showcase a way of playing and manoeuvring through a particular level of a game. This could possibly be an infringing act since the gameplay in itself may be unique but the screen shots would most likely contain a host of copyrighted content such as the game itself, visual/aural elements, script, musical recordings and characters. The fair use defence can only be used in the absence of monetization of the uploaded videos. On the flip side, the game developers more often than not, support such videos since they work as a promotion tool where thousands of excited players are sharing their experiences online. Catching on with this trend, some developers give explicit permission in the terms of service for their games, for instance Mojang, the copyright owners of Minecraft provide for a few easy-to-meet requirements regarding use of the Minecraft name and logo and one is free to use their videos and monetize them on YouTube.

Although the current legal framework does not provide for a specific provision to protect video games and its aspects from being copied, a set intellectual property strategy in consonance with the provisions of The Copyright Act, 1957 can protect business interests of game developers and promoters to a large extent. Since the industry in itself is growing exponentially, a harmonious legal status of the video games would be beneficial for the industry and the concerned stakeholders.



Rishi Wadhwa
Associate, Saikrishna & Associates

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