The gaming industry is one of the fastest growing industries in India as well as the world, and it has been reported that “the gaming industry in the Indian online sector reached $ 1.027 billion in 2020, a growth of 17.3% from $ 543 million. in 2016. “During the nationwide lockdown, mobile games, video games and online games saw a significant increase and apps such as“ Ludo King ”and“ Carrom Pool ”saw the daily number of It is also worth mentioning that the founder of Ludo King reported an increase from 13 million active users to 50 million active users after the start of the national lockdown in India. However, with the popularity With the growing number of video games, there is also an increase in counterfeiting issues in this industry and there are many different aspects of copyright that need to be taken into account in this regard.
In India, video games can be protected by copyright law since they fall under the domain of “creative works”. More specifically, different elements or components of the game will be considered as works protected by copyright. It is well known that software enjoys copyright protection in India. Therefore, video games resulting from software may also benefit from separate protection. The main elements of a video game that can be protected under different categories of “works” under Section 14 of the Copyright Act 1957 (the “Act”) include the storyline, characters, music and parts of the code. Video games can also be protected by copyright on the basis of Article 2 of the Berne Convention for the Protection of Literary and Artistic Works since Article 2 provides for the different types of works protected by law. author.
It should also be noted that the theme of the game cannot be copyrighted because, according to the idea versus expression doctrine, the general rule is that only the expression of an idea is protected. by copyright and not the idea itself. For example, if there is a very important character in a soccer-based game, then that character may be copyrighted. Still, that wouldn’t restrict another soccer player’s character or a soccer-based game.
The 1994 amendments to the Copyright Act of 1957 (the “Act”) introduced software rights. The “author” has been defined under the Act as a person in relation to any literary, dramatic, musical or artistic work that is computer generated and created by this person. Programming instructions and the instructions written by the developer when creating a game are called code. The base code can therefore be protected by copyright under software programs or literary works depending on the choice of the owner. The owner can choose any category to protect his work.
It should also be noted that the Department of Electronics and Information Technology recognizes copyright protection for video games under the heading “multimedia products”. He defines multimedia as “a computerized interactive communication process that includes a combination of writing, sound, images, still images, images, animations, videos, computer software or forms of communication. interactivity content ”. Therefore, it can be concluded that copyright protection can be granted under different categories of works with respect to different elements of the game.
Video game copyrighted content in India
Game content can be classified into three main categories: audio, visuals, and software programs.
● Audio Elements – These are an important part of any game. These include sound recordings, background music, dialogue, animation sounds, and so on.
● Visual elements – These are all the elements that are presented on the screen. They include photographic images, digitally captured moving images, animated still / moving images, characters, text, etc.
● Software programs – These items run the game. They include codes, basic design, plugins, and more.
Whenever a company sells their game, they offer a license to the buyer to use it in a particular way and adhere to its terms and conditions. A company never sells the game to its consumers. The game falls under the category of copyrighted programs, and by law, once a person purchases a program, that person can make copies of it. Therefore, for example, when a company sells a CD containing the game, it gives the buyer a license to play the game. The licenses can be changed depending on the company. It should also be noted that while some companies allow their games to be streamed online, others do not. Therefore, these provisions should be considered in the terms and conditions of the license agreement.
Case in India
At present, there is no case law that directly addresses the issue of copyright in video games in India. However, related cases can be used to interpret the current position on the matter.
One of the related cases which dealt with the issue of copyright in games was Mattel v. Jayanth Agarwalla where the Delhi High Court refused to grant copyright protection to the plaintiff. The plaintiff alleged a copyright infringement against the defendant on his game called “Scrabble” and alleged that the defendant had reproduced the game under a different name using the same layout, the same color of tiles and the same design. . The Court explained that the requirement of “originality” was lacking and stated that simply arranging the tiles in a particular way or color would not give them the right to copyright protection. The Court also cited the case of Eastern Book Company. where it was stated that there must be some judgment and skill and that a job must not be part of a mere mechanical exercise.
The Court in Mattel v. Jayanth Aggarwal also referred to an international affair Atari v. North American Philips and stated that the merger doctrine would apply in this case. This doctrine means that if an idea has only a few means of expression, then granting protection to one of the ideas would mean granting protection to all and restricting freedom of expression. While the Mattel case is not specifically related to video games, the concept of the ruling could apply to video games in the future as well. Thus, this fusion doctrine can be applied to many video games. In cricket games, the bat and ball cannot be shielded, just as in golf games, golf balls and golf clubs cannot be shielded. They are the common elements and are therefore not protectable by copyright.
In another case decided by the High Court Hon’ble Delhi Sony vs. Harmeet Soupir et Ors. , the plaintiff (SONY) had manufactured game consoles under the name Play Station 3 and had also developed various video games for them. The defendant had modified the consoles to run pirated versions of the game created by Sony. The software was popularly known as a jailbreak which would break the encryption created by Sony to make it compatible with pirated games. The defendant charged customers a nominal fee and also purchased an original game and made multiple copies for distribution.
Sony approached the court to seek injunction, trademark infringement, deceptive marketing, restriction of copyright infringement, rebate, etc., stating that the original machines had been modified without their consent. . The defendant had also broken the license by reproducing several copies of the game.
The court then granted an ex parte injunction preventing Mr. Singh from copying, selling, offering for sale, distributing, loading to hard disk, modifying the processing unit of consoles, counterfeit / unlicensed versions of Sony software / games. which amounted to copyright infringement.
Therefore, as the video game industry becomes more and more revolutionary, new sets of copyright infringement issues arise. It is not yet clear whether video games fall into a category of works that can be copyrighted, even if specific components of the same game do, and the courts have yet to address specific issues of copyright. interactive games. It should also be mentioned that the recognition of the legal status of the authors of these different components is very important for the development of copyright protection in the industry.
In the United States of America, there are multiple cases related to the video game industry. In the case of Brown v. Association of Entertainment Traders , the Supreme Court ruled that video games contain artistic elements worthy of copyright protection and are therefore entitled to protection under the First Amendment. The Court said that “like the copyrighted books, plays and films that preceded them, video games communicate ideas and even social messages through many familiar literary devices (such as characters, dialogues, intrigues and music) and through characteristics specific to the medium. (like the player’s interaction with the virtual world) ”. In the same case, however, the Court also stated that certain elements of video games are not protected by copyright “to the extent that they are necessary to perform the particular genre of work”.
In Atari, Inc. v Amusement World, the Court rejected the copyright claim, stating that some ideas can only be expressed in a particular way and therefore protection cannot be granted. This was one of the first cases that dealt with the issue of copyright in video games in the United States.
In Bisson-Dath vs. Sony Computer Entertainment America, where there was some degree of similarity in the plot, theme, dialogue, characters, etc. on a generalized level, the court dismissed the video game copyright claim. Therefore, it can be argued that claims for copyright infringement in the United States were only upheld in court when a substantial part of one game was lifted into another.
Today the gaming industry is on the rise like never before. Modern games are as much software as they are a work of audiovisual art. In India, justice is evolving towards an ideal system. While the current legal system does not contain a specific provision concerning video games, we can see that there are many other ways of granting this protection. Even WIPO has recommended the adoption of an international legal framework for the legal protection of video games and also recognized the need for lawmakers to address concerns raised by online broadcasting and online sporting events. Therefore, we can expect greater protection of unique copyrighted works in the near future.