Online gaming is one of the fastest growing obsessions of today’s youth. What began with video games – first in arcades on giant sized machines and later on relatively smaller and portable devices – has moved to online games that pit the player against the rest of the world. Now gaming consoles are sought after recreational items and online games have a sizable fan following among people of all ages.
The more innovative and interesting a game, the more it earns. The multimillion-dollar contracts for the developers of these games are testimony to the large returns a fresh concept can reap.
Protecting a game is thus critical to maintaining its business viability. For it is by exploiting the game’s intellectual property that an online game can maintain its competitive edge. When this advantage is lost, either by sale of pirated versions of the game or by infringement of its copyright, businesses can incur severe losses.
Electronic gaming relies on the sale of licensed versions of the game to customers who are charged a one time or periodic fee. Online gaming on the other hand, generates revenue through subscription fees and advertisements on its online space. Piracy of these games can render the entire revenue generation system useless.
India is one of the biggest producers of pirated material and also one of its biggest consumers. Several reports both within and outside India, identify the extent of the problem. The authorities acting on applications of copyright owners carry out sporadic anti-piracy drives during which raids are conducted, infringing material seized and criminal proceedings initiated.
Another major threat to gaming is the availability of replicas with slight modifications. Usually, no action can be taken against such replica games as the law of copyright protection states that it is not the idea that deserves protection, but rather the expression of the idea.
Ideas are fair game
So, no matter how original an idea, whether in the form of a book, a film, a song or a game, it can be replicated if the replica conforms to the minimum standard of originality. This is known as the dichotomy of idea and expression or the idea-expression divide.
In addition, games – especially online and board games – are usually not copyright protected as the doctrine of merger is seen to apply. According to this doctrine copyright protection cannot be granted where the idea of a thing and its expression are so intertwined that the line between them is blurred.This rationale was used in several cases, including Allen v Academic Games League of Am. In this case copyright protection was denied to the games as it would have amounted to protecting the idea behind the game. No monopoly can be created in an idea.
The Scrabulous case
Delhi High Court considered all of this while deciding whether the creators of the online game Scrabulous, an electronic version of the well-known board game Scrabble, had infringed any copyright of the real world game. The court said that, “This doctrine of merger is particularly applicable with respect to games “since they consist of abstract rules and play ideas”.
The court went on to say, “The doctrine of merger was also applied in Atari Inc v. North American Philips Consumer Electronics Corporation to deny wider protection to elements in video games. The US Court of Appeals (Seventh Circuit), speaking through a panel of three judges, said: “copyright protection does not extend to games as such”.
Electronic and online games present a unique challenge as there is also the question of protecting their software. If gaming software were considered as regular software it would undoubtedly be copyright protected under section 13 of the Indian Copyright Act, 1957. As an electronic rendering of an idea, it would qualify both on grounds of originality and distinctiveness from the original work and acquire copyright protection as a literary work. Just because the software brings a real world game into the electronic world, should it not qualify for copyright protection?
‘Original’ aspects protected
Answering this question in the Scrabulous case, the court remarked, “The above formulation is not meant to foreclose copyright protection to all games; indeed, there can be certain distinctive elements, or patterns, innovated or created by its author, which, though intrinsic to the game, can claim independent copyright protection.” This means the layout of the game, its graphics and even its instruction manual can be copyright protected, if they qualify as “original” through the “modicum of creativity” test. Although in the Scrabulous case the court refused to consider the arrangement of horizontal and vertical lines as original, this case clarified that any aspect of an electronic game that is unique and original and satisfies the criteria as an “artistic” work, could qualify for copyright protection.
Aditi Sharma is an associate with Lall Lahiri & Salhotra, an IP boutique based in Gurgaon.
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