This is part 2 of the two-part series on IPR in the gaming industry. This part builds on the discussion in the last part and explores the protection of intellectual property in the Indian gaming industry, covering enforcement challenges, inter-jurisdictional issues, and the need for international standardization, and recommends solutions for safeguarding IP rights while fostering innovation.
IP Protection of games in the Indian landscape
In the realm of Indian copyright law, video games have found their place as “creative works” deserving of legal protection. The comprehensive nature of copyrightability extends to the various constituent elements and components that comprise a video game. Given the well-established recognition of software copyright in India, video games, being a product of software, also warrant distinct safeguarding measures. The foundational elements of a video game eligible for protection under different categories of “works” as outlined in Section 14 of the Copyright Act, 1957 encompass the storyline, characters, musical compositions, and select portions of the underlying code. Additionally, video games can seek copyright protection under the provisions of Article 2 of the Berne Convention for the Protection of Literary and Artistic Works, which specifies a diverse range of copyright-protected works. It is pertinent to acknowledge that the thematic essence of a video game cannot be copyrighted, aligning with the fundamental principle of the idea-expression separation. Under this doctrine, only the specific manifestation or expression of an idea is subject to copyright protection, while the idea itself remains unencumbered.
The enforcement of copyright in this realm follows the usual stance of the Indian courts and is often seen from the lens of the transformative use of protected works. For instance, in the case of Mattel v. Jayanth Agarwalla, the Delhi High Court deliberated upon the matter and arrived at a decision unfavorable to the plaintiff. The plaintiff, asserted claims of copyright infringement against the defendant, alleging that their game, named ‘Scrabble,’ had been replicated by the defendant under a different title while retaining the same arrangement, tile color, and design. However, the Court ruled in favor of the defendant, reasoning that the crucial element of “originality” was absent in the plaintiff’s case. Merely arranging tiles in a particular manner or employing specific colors did not suffice to confer copyright protection. The Court invoked the precedent of Eastern Book Co., emphasizing that a work must involve a discernible display of judgment, and skill, and should transcend mere mechanical exercise to warrant copyright protection. Similar to the Nintendo case highlighted above, the courts in India have also recognized the piracy of games and the resulting IP infringement[1].
Further, video games can also be protected under the Trademarks Act as it can protect the game logo, title, sub-title etc. Along with that, the Patents Act protects a game code under its realm. While Section 3 (k) of the Patent Act of 1970 provides that a standalone computer program cannot be patented, if the computer program can demonstrate its association with accompanying hardware components or show a technical impact resulting from its usage, it may be eligible for a patent. In this context, the case of Mattel Inc. v. Mr. Jayanth Agarwalla established that rules and schemes for playing games are not protected under the Patents Act of 1970.
However, navigating IP rights as a challenge has achieved further complications with the advent of technologies like Metaverse where people from all over the world interact in a virtual ecosystem making jurisdictional approach to IP difficult to achieve IP enforcement.
Inter-Jurisdictional Challenges in the Gaming Industry
The video game industry operates globally, with games reaching players across borders through online platforms. However, intellectual property rights are territorially bound, meaning protection granted in one jurisdiction may not be enforceable in another. Game developers face the challenge of determining where to seek IP registrations and understanding the IP laws of various jurisdictions where their games are utilized commercially or non-commercially. To address inter-jurisdictional challenges, developers need to consider international IP protection strategies. This may involve filing for IP registrations in multiple jurisdictions, particularly in markets where their games are popular or where they plan to expand their business. By securing IP protection in relevant markets, developers can enforce their rights more effectively and mitigate the risk of infringement. IP registrations provide legal evidence of ownership and create a barrier for potential infringers. They also serve as a basis for enforcement actions, allowing developers to take legal recourse against infringing parties.
A notable case, Yahoo! Inc. v. Akash Arora and Anr., exemplifies this issue. Yahoo! faced a lawsuit from an Indian plaintiff who claimed that the content displayed on its website violated Indian law by being offensive and defamatory. Yahoo! contended that as a US-based company, the case should be heard in the United States. However, the Indian courts asserted their jurisdiction over the matter, citing that the harm caused by the offensive content affected the Indian plaintiff directly. Perhaps, an approach like this could be utilised to adjudicate on cases involving IP infringement and other concerns in the metaverse. Further, Indian Courts have utilized the concept of “long-arm jurisdiction” to settle disputes concerning computer networks. In the case of Swami Ramdev[2], the court referred to the definitions of “computer resource,” “computer system,” “computer network,” and “data” as stated in Sections 2(1) (k), 2(1) (l), 2(1) (j), and 2(1) (o) of the Information Technology Act. The court concluded that the Act does not specify that blocking should be limited to the territory of India.
The complexity of virtual cases also enhances jurisdictional conflict and has been recognized in various cases[3]. Litigation in virtual cases poses challenges due to avatar identity, jurisdictional complexities, interpretation of virtual rules, and enforcement difficulties. Avatars may not reflect real-life identities, making it hard to serve defendants and determine their true identities. Jurisdiction becomes complex as virtual worlds transcend physical boundaries. Navigating virtual rules and their impact on legal claims is necessary. Enforcing judgments and remedies can be challenging without clear legal status or the physical presence of virtual assets. These factors make virtual cases distinct from traditional litigation, requiring special considerations and adaptations in the legal process. The courts in the US have also used the concept of transformative use, the Rogers test, and first amendment rights in such cases[4]. Meaning, if the jurisdictional problem is solved, virtual landscape cases can be litigated just like cases in the real world are.
Harmonization of IP laws
Further, As the gaming industry becomes increasingly global, the lack of harmonization in international intellectual property laws poses challenges for developers seeking to protect their creations across different jurisdictions. International treaties and agreements, such as the Berne Convention and the TRIPS Agreement, play a significant role in establishing minimum standards of IP protection but require ongoing efforts to address the evolving nature of the gaming industry. For instance, the government of India took a step on December 26, 2022, by issuing a gazette notification designating the Ministry of Electronics and Information Technology as the central ministry responsible for online gaming-related matters. Additionally, a draft amendment was proposed for the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, aiming to classify online gaming platforms as intermediaries. This classification would require them to exercise due diligence in preventing any infringement of patents, trademarks, copyrights, or other proprietary rights. The global video game industry has seen a number of IP infringement cases. Games like PUBG, Fortnite, etc, have also been involved in these infringement suits. Such suits are not limited to acts of plagiarism, but many times have also extended to games involving parodies[5] and games having the capability to disturb someone’s reputation. A harmonized system dealing with increasing IP issues and amending jurisdictional laws to safeguard such results is thus, very important.
Conclusion
As the video game industry evolves into a thriving global phenomenon, navigating the complex realm of intellectual property (IP) becomes crucial for creators and stakeholders. To safeguard innovation and creativity, viable solutions are needed. This includes international standardization of IP protection, embracing technologies like blockchain and NFTs, prioritizing user-generated content with clear guidelines, and fostering a culture that values and respects IP rights. By taking these steps, the industry can ensure a vibrant ecosystem that encourages innovation while protecting the rights of creators. Collaborative approaches to intellectual property in the gaming industry, such as licensing agreements, cross-industry partnerships, and open-source development models, promote knowledge sharing, innovation, and responsible use of IP while striking a balance between protecting developers’ rights and fostering a culture of creativity seem to offer the solution as the world navigates through these new technologies.
Read the part 1 here: https://www.theippress.com/2023/08/14/the-power-play-balancing-intellectual-property-rights-in-the-metaverse-gaming-landscape/
[1] Sony Computer Entertainment Europe Ltd. Vs. Harmeet Singh & Ors. MIPR 2013 (1) 0101
[2] Swami Ramdev & Anr v. Facebook & Ors., 2019 SCC OnLine Del 10701
[3] Minsky v. Linden Research, Inc., No. 1:08 cv 819 (N.D.N.Y. 2009), Eros, LLC v. Leatherwood, No. 8:07 cv 01158 (M.D. Fla. 2008); Eros LLC v. Simon, Case No. 1:07 cv 04447 (E.D.N.Y. 2008).
[4] E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095 (9th Cir. 2008)
[5] Ate My Heart Inc. v Mind Candy Ltd [2011] EWHC 2741 (Ch), TATA Sons Ltd. v. Greenpeace International & Anr, 178 (2011) DLT 705.
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