Copyright explainer - Part 1

Protecting Copyright in Game Content - Practical Implications

Most people in the games industry will be familiar with one or more aspects of copyright, which is the most important of the various intellectual property rights in relation to the protection of content in videogames. With the increase in digital distribution platforms as well as the growth in complexity of virtual worlds, it is vital that game developers have a working grasp of some of the practical issues that relate to copyright.

Here, Rustam Roy, associate at Dundas & Wilson LLP explains the key issues faced with regards to copyright. Part one in this two-part series will touch on some of the very basic building blocks of copyright as it relates to game content, while part two will look at practical issues in relation to exerting control over the copyright in a finished game.

What is copyright?

Copyright is a property right that entitles the copyright owner to prevent others from doing a number of acts in relation to the copyright work – each of these is referred to as a "restricted act". Copyright is NOT a monopoly – it is theoretically possible (although perhaps unlikely) for two identical works to be created and protected by copyright simultaneously, provided that each is created independently of the other without committing a restricted act in relation to the other.

Many people are familiar with the "idea" and "expression of idea" distinction, which provides that copyright does not protect an idea (eg the idea of a multi-player role-playing game in a fantasy world) but only the expression of that idea (eg the specific features of an actual fantasy world and its features).

There are several different categories of copyright works (for example, literary works, sound recordings, artistic works and dramatic works), each of which has to satisfy the basic requirements for copyright protection – the work has to be original (and this is has a specific meaning in relation to copyright) and it has to be recorded in some form. There are differences the practical terms of copyright in relation to each of these categories of copyright works. For example, the duration of protection, the criteria for assessing infringement and the default ownership position will depend to some extent on the type of copyright work.

Unlike, for example, in the US, under English law copyright exists automatically and need not be registered to be enforceable. In the event that one wants to enforce the right against someone else (eg sue someone for copyright infringement), the courts will first examine whether the work in question is protected by copyright.

Who owns copyright?

The general rule is that the author of the work owns the copyright, although the law recognises that people are often employed to create parts of a copyright work (game developers and artists, for example) and in such circumstances, subject to certain conditions, the employer is the owner of the copyright in a work created by an employee. The flip-side of this is that an independent contractor (ie someone who is not legally an employee) is the owner of the copyright in a work, even if that contractor has been instructed to create that work by someone else for a payment.

Where is copyright protected?

Like all intellectual property rights, copyright exists in relation to a particular legal jurisdiction, which means that the extent to which copyright exists is determined by the copyright legislation in a particular territory. Usually, copyright legislation will require that there is some sort of territorial connection (eg the copyright owner's residence in a particular country) before a work can be protected by the copyright legislation of that country.

This does not mean that a copyright work which, for example, is protected by UK copyright, is not automatically protected in other countries. In fact there are three major international treaties which deal with international copyright protection and enforcement and the UK is a signatory to each of these treaties. While UK copyright will be recognised pursuant to those treaties, there may still be differences in the scope of copyright protection in other territories – the most common difference being the duration of copyright protection.

Types of copyright in a videogame

The most obvious copyright work in a videogame is the computer program, which, for the purpose of copyright law, is a literary work. Due to the requirement of being recorded in some material form, it is the object code and the source code which are the elements of the computer programme which are protected by copyright. In practical terms, it is the source code which is of more immediate use commercially and therefore an infringement of copyright in the computer program will be judged primarily by an examination of the similarity of the source code used in the original programme as well as in the alleged copy. The judgment in Navitaire v Easyjet and Bulletproof Technologies (2005) confirmed that the courts will examine whether source code and graphic elements have been copied, in evaluating claims of copyright infringement of computer programmes.

Apart from the computer program itself, copyright can exist in graphic images (in bitmap or other formats), design drawings and sound recordings. The recent Court of Appeal judgments in Nova Productions Ltd v Mazooma Games Ltd and others and Nova Productions Ltd v Bell Fruit Games Ltd (2007) examined in some details claims of copyright infringement in relation to arcade games, in the absence of any alleged copying of source code. The judgments made clear that, while software and graphic elements can be protected by copyright, the recorded materials that are alleged to have been copied will need to be expressed at more than just a general level of abstraction (especially if the relevant features are also fairly common-place) for copyright to actually exist in relation to those materials.

The ownership of the copyrights in the various works that can be part of a video game depends on who created the work. A developer (whether that is a company or an individual), should always try to own all rights in a finished game, but, notwithstanding verbal discussions between a team of people who are working on game, that is not an automatic result in case there are any differences in agreement or intention. The following could, conceivably, all own a slice of the relevant rights:

  • Anyone who (1) writes an original part of the source code in the computer program, or (2) creates original artwork for the game, or (3) writes original music for the game and who is not employed to do so or who has not agreed to transfer his/her rights to the developer.
  • The entity from which the game engine or parts of code are licensed in, for use in the game.
  • The entity which owns rights in the underlying franchise, if applicable.

Apart from a variety of people owning rights, a developer also needs to be aware of the use of open source software, which is prevalent in many middleware products. Use of open source software can, depending on the licence terms that apply, mean that it is not possible to restrict the downstream licensing of software which was written using the open source software.

Link to other Intellectual Property Rights

Moral rights are a collection of rights that can be exercised by the author of a copyright work (or the director, in the case of a film). These rights ((i) to be identified as the author, (ii) to be able to object to derogatory treatment of the work, (iii) not to have some work falsely attributed to him/her and (iv) to maintain the privacy of photographs and films which were commissioned for private use) can not be licensed or assigned, but they can be waived.

Copyright can also co-exist with other intellectual property rights, such as design rights and trade marks. A design drawing of a character’s weapon can be protected by copyright, while the product manufactured from that drawing (for merchandising, for example) can be protected by design right. It is also possible that a work will be protected by copyright as well as design right – for example, an architectural drawing.

Copyright works can also function as trade marks – for example, the name or likeness of a character in a game. The pictorial representation of the character, or the particular type-setting of the name, may be protected by copyright while the pictorial representation may be protected by trade mark law as a logo and the name as a text.

Patents and copyright do not generally protect the same works, except for computer software, which, in some jurisdictions (notably the USA), can be patented if the software meets the requirements of patent law. In the UK, it is theoretically possible for computer software to be patented, although the approach take is not as liberal as in the USA.

Rustam Roy is a media and entertainment lawyer in Dundas & Wilson's TMT practice, and was previously the sole lawyer at the European office of one of the major Japanese MMO publishers. This article is general in nature and should not be regarded as legal advice or be substituted for specialist legal advice in relation to specific circumstances. Dundas & Wilson.

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