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TMT legal update: All to Play For: WIPO study on the legal status of video games

    • Intellectual property
    • Media - e-briefings
    • Technology, Media and Telecoms - Media

    05-11-2013

    Précis

    WIPO has commissioned and released a study into the current legal status of video games, which reviews the position in a number of different jurisdictions worldwide and makes recommendations for the protection of video games as a single copyright work.

    Over the last 20 years, the video game market has grown such that it is now a substantial part of the entertainment industry and its economic significance has increased hugely.  Video games are also becoming more sophisticated and increasingly complex in nature.  For this reason, it is important that consideration is given to how video games are protected as individual works rather than as a sum of their constituent protected parts.

    What?

    Video games consist of a number of elements each awarded copyright protection in their own right.  Broadly speaking, there are two main types of work: computer code; and audio visual works.  Computer code includes source code and object code (including plug-ins).  Audiovisual elements include aspects such as photographic images, animation, music, text, sounds recordings and sound effects.  Apart from these two main categories, other potentially protectable elements include aspects such as the characters and plot of a video game.

    A number of parties are involved in creating all of these elements.  For example, video games will typically involve all of a producer, game designers, visual artists, programmers or engineers, audio designers and owners of neighbouring rights such as performers and actors and the producers of audiovisual and sound recordings.

    Whether any of these contributors will hold any copyright will depend upon their contribution to with work and the specific requirements of each jurisdiction.

    The individual elements that comprise a video game are not protected per se – as they need to meet the relevant criteria for protection in each jurisdiction.  The real issue, therefore, is the protection of video games as single works of authorship in their own right.  The debate in respect of copyright protection of video games lies in the classification of video games such that authorship and ownership can be determined.

    Based on the countries participating in the study, the study found that some countries favour granting separate legal protection to the different elements of the game according to the specific nature of each work.  A few countries tend to class video games as essentially audiovisual works.  However, the majority of jurisdictions class video games as computer programs, due to the specific nature of the works and their dependency on software for implementation.  The position in relation to classification based on code is complicated by the fact that many video game developers use generic or shared code for much of each game, and only a small percentage is unique and original.

    The study concludes that, due to the complex nature of video games and the differing importance of composite elements between different games, none of the individual elements necessarily prevail for the purpose of classification and a distributive approach would seem to be appropriate.  In particular, the study recommended that the following elements could be taken into account in any debate on the protection of video games:

    • Establishment of a special regime for the protection of video games;
    • A presumption of the transfer of rights in favour of the video game producers;
    • A case-by-case analysis to determine which contributors should qualify as authors, depending on, for example, the type of game and the creative contributions;
    • Fair compensation provisions should be enacted in respect of authors who have contributed significantly to the video game and/or its success; and
    • Other stakeholders and industry players (such as publishers and quality assurance testers) do not contribute to the creation of the work itself.

    The study predicted that broadcasting of video games and video game tournaments will increase in the years to come and lawmakers might in future need to address the issue of television network or internet website rights. 

    So what?

    Given the sums at stake in relation to video games there is clearly a need for video games to be granted legal protection in their own right and moves in this direction are to be welcomed.

    There are likely to be significant challenges in the establishment of such protections, since whatever protection scheme is adopt is likely to cause problems and encounter obstacles due to the complex and overlapping nature of composite copyright works.

    A key message is that within the current protection framework, and whatever scheme is put in place in future, it remains of utmost importance to ensure that suitable contractual provisions are agreed that govern the protection of video games and the ownership of subsisting intellectual property rights.