Let’s go back to basics and pose the question “what are video games?”. This may sound like a trivial question, but a strong understanding here lays the groundwork for understanding more complex issues down the line, particularly intellectual property issues… which can get very complicated.
Let’s start with a definition. The European Commission defines a video game as “an electronic or computerized game played by manipulating images on a video display or television screen” and we see this mirrored by most dictionaries. This is an intentionally broad definition in order to capture all types of game, whether online, offline, text-based, or a digitalisation of an existing game, for example chess or monopoly.
It is worth noting that with technological advances allowing for more creative and innovative ways to play games, this definition is rapidly becoming questionable. For example, a game which relies solely on audio interaction, or audio responses to a motion-captured input would not be considered a video game. As motion-capture, virtual reality and haptic technology progress we may see more games emerge which challenge a traditional understanding of ‘video games’ and require either their own term or a redefining of the term ‘video game’.
But let’s take a step back for a moment. Let’s embrace that ‘fresh start’ mentality and consider the elements of a video game:
Computer Code
A game engine; middleware; event scripts; server software; and any plug-ins you might add all cooperate to create and communicate the features of the game through whichever platform you are using. Whether it is game logic, graphics, audio, physics, or character AI… it all starts with code.
Visual Content
Most games are made up of still images, such as .jpegs, and/or moving images, such as .gifs. With modern technology visual images are increasingly sophisticated and easier to render allowing developers to create complex animated 3D models.
Audio Content
Although not essential according to our definition, it is common for video games to incorporate audio content. Most modern games have soundtracks that play continuously but also sound recordings and effects that are triggered by in-game events or player inputs.
The Legal Approach
So, we have a definition and we can see that video games are built from a number of interconnected building blocks. But now it’s time for the lawyers to come and make everything a little more confusing.
Intellectual Property, or IP, relates to right created through the expression of creativity. You can find more on IP law in the Lawyers and Agents section but for now let’s quickly list some common rights and what they protect:
· Copyright protects literary and artistic ‘works’;
· Patents protect product or process ‘inventions’;
· Trademarks protects ‘marks/signs’ such as logos and names used in commerce; and
· Designs protect the ornamental or aesthetic aspect of an ‘article’.
With this understanding we can see that a video game is built on more than just functional parts but is also a combination of many different IP elements, copyright in particular. The visual artwork, the in-game characters, the soundtrack and sound effects are all creations which can be protected by copyright. Even the plot and the script of any dialogue could be eligible for copyright protection. And the computer code… you better believe that is all protected by copyright too.
Are Video games a single unit or a collection parts?
Considering the functional make-up of video games is already complicated enough you might think that an IP regime which deals with each video game as an all-encompassing IP unit might be convenient. This approach is known as the ‘unitary’ approach. countries like Argentina, Canada, China, Israel, Italy, the Russian Federation, Singapore, Spain and Uruguay have adopted this approach and prefer to regulate video games as computer programs in their own right. Other countries including Belgium, Brazil, Denmark, Egypt, France, Germany, India, Japan, South Africa, Sweden, the United Kingdom and the United States of America recognise prefer a ‘distributive’ approach. These jurisdictions prefer to recognise video games as hybrid entities consisting of various individual IP elements. As such protection for a game’s graphics, audio, code, etc. would all be separate.
The CJEU Approach
It is worth noting the slightly different approach taken by the Court of Justice of the European Union (CJEU). Apart from Italy and Spain, most EU member states subscribe to the distributive approach, however, the CJEU has demonstrated a unitary approach, with a twist. In Nintendo v PC Box (2014) the CJEU was presented with the problem of either applying the Copyright Directive 2001 or the Software Directive 2009 to video games, and other hybrid IP generally. Rather than apply the Software Directive to video game software and the Copyright Directive to other copyright material the CJEU decided to apply just one Directive to the whole entity… The Copyright Directive.
Unlike the ‘unitary’ jurisdictions above which see video games as primarily computer programs, the CJEU wanted to apply the more general provisions of the Copyright Directive. As such, they seem to prefer a unitary approach where video games, and hybrid IP generally, are entities in their own right but are too complex to be reduced to merely ‘computer programs’. It is important to note that the extent of this judgement is debatable as it is unclear whether it only applied to the specific case or whether it is intended to have a broader reach.
So… to sum up…
Video games are electronic or computerised games played by manipulating images. They consist of computer code and audio-visual elements, many of which are protected IP. Jurisdictions differ over whether video games, and other hybrid IP, should be treated as individual entities or the sum of various, overlapping IP. The CJEU has put forward its own approach which differs from the majority of its member states but, as of yet, the extent of its application is questionable. The consequence of how video games are understood is incredibly significant when considering the possibility of digital resales which you can read about HERE.
Adam McGlynn
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