CHALLENGES IN ENFORCING INTELLECTUAL PROPERTY RIGHTS IN THE VIDEO GAME INDUSTRY

ABSTRACT

The present paper examined the incorporation of intellectual property rights in the video games industry. It provides an idea of employing various aspects of intellectual property rights in the industry in order to protect the rights of the investors, creators, developers, games and anyone related to the field. It also portrays an overview of the significant legal challenges arising in the industry due to changes in the different aspects of society. Also due to the absence of a specific subject matter-oriented set of regulations addressing the divergent aspects of gaming, it further adds on to the challenges. As the gaming industry is continuously evolving, new technologies emerge that require well-defined legal provisions for the sustainable growth of the industry. The paper analyses the varying techniques in which the different forms of intellectual property rights can be utilized in order to provide protection to the authorities and also mentions about the adequate remedies available in case of any infringement of the rights. It emphasizes the significance of a legal framework addressing the multifaceted distinct aspects of gaming as with the increase in the population of users it becomes more essential to have certain rigid laws for maintaining the growth of the industry. It thus explains the significance of maintaining the balance between the protection of intellectual property rights and promotion of new ideas and innovations.

Keywords

Intellectual Property Rights, Video Game Industry, Legal Challenges, Regulations, Legal Provisions, Sustainable Growth, Remedies, Infringement of Rights, Innovations.

INTRODUCTION

In the constantly evolving technological development, it is very essential to have comprehensive intellectual property rights protecting the various rights of individuals related to the gaming industry. After the enactment of the Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in 1995, various new alterations were done in Indian Intellectual Laws in order to comply with the international standards for the protection and enforcement of the rights of the inventor, designer, gamers, developers and everyone else related to the industry. However, in India, the gaming sector is not legally regulated in a specific manner and also the administration of video games is not included in any particular law relating to intellectual property rights. The enforcement of these rights in the constantly evolving technological realm of gaming face various distinct challenges.

The enforcement of these intellectual property rights in the gaming industry is subjected to various technological, social, cultural as well as economic complexities. The protection of these invaluable assets comprising the countless hours of thoughts, designs, planning, development, etc undergoes various formidable challenges. Hence the enforcement of the intellectual property rights in the gaming industry is endeavoured by legal rights as well as technological advancement. The creators or developers while asserting their ownership over their creations struggle with multitudinous challenges.

PURPOSE OF THE STUDY

The main aim of this article is to analyze the various challenges arising in enforcing Intellectual property rights in the video game industry due to the changes occurring in different aspects of the society. Due to technological advancement, accessibility of resources and the increasing demands of consumers, the gaming industry is growing exponentially thus the enforcement and protection of intellectual property rights also becomes challenging.

SIGNIFICANCE OF INTELLECTUAL PROPERTY RIGHTS IN THE VIDEO GAME INDUSTRY

In the current scenario, the enforcement of intellectual property rights in the gaming industry is crucially essential for the protection of ownership over their creation.[1] Under Section 2 of the Copyrights Act of 1957,the term ‘cinematography works’ is defined that includes the aspects of regulating video games and anything related to it. Thus, it provides the original creators and developers certain exclusive rights to sell, publish, or reproduce their creations by others without the intention of gaining any commercial benefits without the consent of the actual owner and it secures all the computer-generated programs as literary works. It protects the various aspects of gaming such as the background interface, names, music, characters, the program code or other creative aspects. ^[2]Also, the TRIPS Agreement as well as the Berne Convention provides both economic and moral rights to the owners through which they can commercially exploit their creation without any interference and receive economic benefits. Though it provides certain significant protections to the ESPORTS industry, there are not any well-defined codified laws.

Both the hardware and software devices of the video games are secured by the Patents Act of 1974 and protects the process of creation and other operational characteristics.^[3] Also Section 2 of the Design Act,2000 safeguards the graphic design, user interface, artwork, and other visual characteristics of the video games. However, it only protects the various aspects of the video games and not the underlying technology behind the graphical representations. Apart from the aforementioned ones, there are numerous other forms of protection under the Intellectual Property Rights that offer various other legal protection to the authorities in the form of Patents, Trademarks, Trade secrets, Licensing and many more.

CHALLENGES IN ENFORCING INTELLECTUAL PROPERTY RIGHTS IN THE GAMING INDUSTRY

The video game industry faces numerous challenges due to various dynamic movements in the society like rapid technological advancement, increase in the population of consumers in global digital platforms, ease in accessibility of information and resources, complexities in the utilization of the digital content, etc. However, in this data-oriented generation, the safeguard of digital information in the form of visual designs, graphics, program code, inventive mechanisms etc are essential for protecting the intellectual creation of the creators or developers. Some of the most prominent challenges prevalent intellectual video game industry are mentioned below-

LIVE STREAMING- Live streaming imposes a huge challenge on the enforcement of intellectual property rights in the gaming industry. It greatly infringes the legal exclusivity of rights of the creators as streamers can broadcast their gameplay without any proper authorization of the game developers. It is extremely difficult to monitor these streams for the purpose of protecting the rights of the developers in addition to the absence of any adequate legal framework.[4] However, some of the developers permit this unauthorized streaming as it provides free publicity by providing free access to their gameplay and allows the utilization of their creation in their end-user license agreements as well but must be subjected to fair usage. Different platforms have their own policies of safeguarding copyrighted or patented content thus imposing further challenges on the enforcement of their rights. Live streams usually involve commentary, alterations or modifications of the original creation and participation of the mass.
DIGITAL PIRACY- Digital Piracy refers to the illegal use, publicity or sale of copies of the game that ultimately results in the loss of economic benefits or revenue of the creators. Thus, it becomes challenging to control the unauthorized usage of a creator’s content as it can be easily distributed through the global media. ^[5]Digital piracy immensely affects the revenue of content creators, developers, publishers, and leads to significant financial loss as they don’t get their share of economic profits due to inadequacy of resources The enforcement of anti-piracy measures usually vary across regions due to differences in law, regulations and enforcement facilities. Some developers employ sophisticated technologies like digital rights management (DRM) system to prevent the piracy of any content but it may sometimes affect the accessibility to the content by legitimate users that in turn affects the creators’ reach and growth. Also, it is difficult to track the digital piracy due to the widespread traditional file sharing network among peers that allows easy distribution of Contents.
GAME CLONING- It refers to the intentional creation of completely same or remarkably similar imitation of a popular existing game. The imitation may be in terms of graphic design or artwork or even the overall concept of the game. It is a direct infringement of the creator’s rights as it draws significant economic benefits by undercutting the sales of original developers without any effort of experimentation or innovation and result in legal proceedings in the form of cease or desist, etc. ^[6]This results in confusion among the consumers who often mistake the cloned game with the original one. Thus, it created a huge challenge in the gaming industry owing to the ethical as well as creational infringement questioning the protection of creativity and fair competitive marketplace. It is extremely essential to formulate strict regulations regarding the intellectual property rights in the video game industry to refrain from game cloning and unauthorised imitation.
ASSET FLIPPING- In this the developers create new games by purchasing pre-existing gaming assets like characters, sound effects, graphics ,etc. From the marketplace and assembling them into a new game without much effort. ^[7]Asset flipping is the creation of a new game through the usage of ready-made assets regarding art, audio etc. from the available online marketplace for taking economic benefits in disguise of another currently popular game. Through this process new games can be created within less time but those lack the essence of originality, and have a lot of technical issues. These games also create hindrance for the original games in the market by generating a remarkable revenue through their sales in disguise when they are released in the digital platforms. Therefore, it is significant in the gaming industry to support and promote developers who create unique content and in addition to maintain transparency of the processes of development.
EMERGING TECHNOLOGIES- The emerging technologies in the gaming sector also imposes a serious threat on the protection and implementation of intellectual property rights. With the development of new technologies such as Artificial Intelligence, Virtual Reality, Augmented Reality, etc. it becomes more difficult to determine the various intellectual property rights of the creators and developers. Due to the widespread usage of the online distribution platforms, the generation of contents is easily available to the users hence the procedure for the determination of intellectual property rights of the developers in the form of copyrights, patents, trademarks, etc become even more challenging.
GLOBAL REACH- In the current scenario where the field of communication is at its peak thus the gaming industry is also no different having an unbelievable global Crown making it difficult to track the enforcement of intellectual property rights in regards to the specific jurisdiction of the countries. ^[8]The increase in the global reach and expansion of the marketplace promotes foreign investments thus ultimately resulting in overall development of the industry. These games are easily accessible by the people belonging to varied geographical backgrounds due to their huge availability on a number of platforms like smartphones, laptops, tablets, etc. There is no universally accepted criteria for the standards of interpretation of copyrights or patents thus making it a huge challenge as different nations have their own ideas and laws that may not be consistent with each other. The games are globally distributed in a sense opening the doors for cross border accessibility which complicates the consistency in protection of intellectual property rights. The enforcement and protection of the intellectual property rights in the gaming industry requires a lot of cooperation among the nations in terms of their jurisdiction followed by effective law enforcing international agencies.
ONLINE DISTRIBUTION- Online distribution has many advantages and drawbacks of its own. It makes the widespread video games vulnerable to online piracy by which the pirated copies can be sold in the market thus making a huge loss to the original developers. Also due to the huge availability of resources and content on a specific theme online it often becomes difficult for creators to stand out in the crowd with their content. Additionally due to the unfiltered nature of the gaming industry at times it also made content that might be unreliable and often the relevant information becomes undiscovered. Apart from this, the audience or users always have the scope to put forward their opinions, but most of the time, the negative feedback, opinions or reviews greatly distribute the creator’s mentality, reputation and even the revenue generation.

CONCLUSION

In the recent decade the protection of intellectual property rights in the gaming industry faced numerous challenges due to the constantly evolving technological development and evolution of the global marketplace indirectly increasing the population of the users worldwide. Among the myriad threats to the implementation of the rights of the investors the most common are online piracy and game cloning. In order to compete with these threats to the gaming industry various technological measures are adopted by the developers as well as the nations as a whole such as procedures for increasing the transparency and accountability of the development process, anti-piracy measures, blockchain mechanisms, etc. Apart from these measures rigid laws are proposed for the administration of the industry along with adequate remedies in case of any infringement of the rights of the investors in any form.

REFERENCES

Adieme,T.N,. Exploration of the socio-economic challenges, incremental technological/digital impact and critical influencing the lottery gambling and gaming industry,. Editorial Policy 17, no.37(2020)
Adelman, J.M,. and Baldia, S,.Prospects and limits of the patent provision in the TRIPS Agreement: the case of India,. Vand.J.Transnat’l. L.29, no. 507 (1996)
Carrea, C., Trade related aspects of intellectual property rights: A commentary on the TRIPS Agreement,. Oxford University Press, (2000)
Wan. P., Pinheiro.V.F., The development of the gaming industry and its impact on land use,. Gaming, governance and public policy in Manco 1, no.19 (2011)
McGowan. R., Government and the Transformation of the Gaming Industry,. Edward Elgar Publishing, (2001)

^[1] copyrights, India,. HTTPs “the Copyright Act,1957(14 of 1957)

^[2] Sterling, J.A.L,. “BACKGROUND AND BASIC PRINCIPLES” in World Copyright Law 279, 3 ed.(2009)

^[3] Official website of Intellectual Property India, https://ipindia.gov.in, The Design Act 2000, Intellectual Property India

^[4]Live Law, https://livelaw.in “Intellectual Property Rights in the Gaming Industry”

^[5] Lexology https://www.lexology.com “Online gaming: challenges in protection of intellectual property”

^[6] medium.com “Intellectual Property Rights in the Gaming Industry”

^[7] Open Metaverse Foundation https://www.openmv.org “Asset Flipping”

^[8] Wan. P., Pinheiro.V.F., “The development of the gaming industry and its impact on land use”, Gaming, governance and public policy in Manco 1, no.19 (2011)

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