INTELLECTUAL PROPERTY RIGHTS IN THE GAMING INDUSTRY

This article is written by Alfiza Borah of 2^nd Year of B.ALL.B (Hons) of Centre for Juridical Studies, Dibrugarh University, an intern under Legal Vidhiya

ABSTRACT

This paper tends to examine the influence of intellectual property rights in the gaming industry in India. It begins with a detailed discussion that emphasizes the significance and recognition of intellectual property rights and in particular how these laws can be utilized for the protection and enforcement of intellectual property rights in the gaming industry. The present paper also discusses the different types of intellectual property rights in the gaming industry such as patents, trade secrets, trademarks, copyrights, and many more. Further, it also analyses the new emerging trends and technologies that facilitate the purpose of protection of the intellectual property rights in India. The paper mentions the various challenges and issues faced in the gaming industry for the implementation of the legislation relating to intellectual property rights. Thus, it enables a better understanding of the application, enforcement and protection of intellectual property rights as well as challenges faced in the gaming industry in India.

Keywords

Intellectual property rights, gaming industry, protection and enforcement, patents, copyrights, emerging trends, challenges and issues.

INTRODUCTION

The intellectual property rights plays a significant role in the protection and preservation of the innovations and as well as other creative works for the growth and evolution of the gaming industry. With the new age generation of technological advancement, it is vital to have a firm set of laws that govern the development, protection, enforcement and safeguard the technical data and commercial information of the company. In order to ensure the success and growth of the company in the competitive marketplace, safeguarding the innovative technology, authentic ideas, unique characters or names becomes an unavoidable matter of jurisdiction. The developers or creators are provided with a variety of rights and privileges, the infringement of which may lead to civil as well as criminal remedies to the aggrieved party. Thus, it guarantees a variety of significant legal protection to the legitimate owners for the protection of their creation and the economy as a whole.

As the active, productive and creative uses increased due to the widespread usage of the video games in the interactive media, it imposes a great threat on the intellectual property rights for the maintenance of protection and security of the data. ^[1]The determination of the fact that whether a game has been outright being copied from another is not easy, thus currently the judiciary is trying to establish a harmony between the prevention of cloning of ideas and the scope for new innovations. Thus, it provides the expected intellectual protection to the digital-content creators since there is a rapid growth of the consumption of the video or virtual gamers within a very short span of time. The intellectual property rights in the gaming industry provides a wide range of protections to the players ranging from the names, images, avatars, costumes, performances, movements, dance steps used in the game and many more along with the program coding.

SIGNIFICANCE OF INTELLECTUAL PROPERTY RIGHTS IN THE GAMING INDUSTRY

With more and more popularity and growth of the video gaming industry, the number of consumers, players and spectators are increasing that pose a threat to the various legal issues.^[2]Thus the judiciary have to act beyond their traditional role as just mere managers of property rights into the managers of the entire communities as the market for video games is growing at a substantial rate. The implementation of intellectual property rights in the gaming industry is very crucial due to a varied number of reasons. Some of the most common significances are listed below-

1. The Intellectual Property Rights secure the creative work of the developers or producers of the virtual games that includes the identity of the characters, graphics, costumes, backdrop or storyline, etc. It provides the owners the exclusive rights over their creation without the consent of whom their usage would be considered as infringement of the rights of the creator.
2. The implications of these rights paves the way for the opportunities of international trade and business. The creators are provided with a variety of rights along with legal protection for conducting trade in the international market with ease. This makes cross-border commercial transactions easier and ensures the expansion of the gaming industry globally.
3. These rights provide strong assurances to the investors that their contribution would be safeguarded against any possible damage or loss. Thus, it enables the investors to freely invest in the industry that in turn leads to the development of the entire industry.
4. These rights provide complete authority to the creators in terms of deciding how their creations should be presented to the masses and also its usage and application through which it maintains the authority and reputation of the creators and developers. This also provides rights to the developers to create innovative and extraordinary games to differentiate themselves from their competitors and also enforcement of their rights in case of any illegal imitation or stealing.

TYPES OF INTELLECTUAL PROPERTY RIGHTS IN THE GAMING INDUSTRY

In India, various forms of protection are being provided to the gaming industry under the aspect of the Indian Intellectual Property Law. The law provides various legal protection and remedies in case of any infringement of the rights of the gamers, developers and other creative members of the industry. This enables the creators and owners to maintain the authenticity of their creation, to prevent the unauthorized access to any information without the permission of the legitimate authority, to provide new opportunities and a suitable environment for the purpose of ensuring new ideas in the form of innovations and creations that in turn adds on to the national economy as a whole. The intellectual property rights provide a variety of protection to the different aspects of game development and distribution.

Some of the most common protection provided to the gaming industry in the form of different aspects of intellectual property rights are mentioned below-

1. COPYRIGHTS- It is an essential component of the gaming industry as it protects the various aspects of the creation and development of games for a specific period. It prevents the illegal use of the original creation that includes the characters, graphics, costumes, music, software code and also the movement and performance in the video games. However, the theme of the game cannot be copyrighted as the idea itself cannot be copyrightable and only the expression and presentation of the ideas is. This ensures the fact that the developers or creators have the exclusive rights over the use and distribution of their creative works. ^[3]Through the enactment of the Berne Convention, the protection of video games under copyrights also applies to the international market along with legal remedies against any infringement. ^[4]In India, the copyright protection of video games is administered by the Ministry of Electronics and Information Technology. The amendment in 1994 of the Copyright Act,1957 recognized the rights of software programs as artistic works that are computer-generated and any software code created or designed by that person. It provides protection to the audio-visual as well as the computer software program.
2.  TRADEMARKS- The branding of a particular gaming platform is vitally significant for establishing a successful and recognizable impact and thus trademarks play an important role in this. It protects the brand name, logo or symbol, tagline, or even the overall aesthetic that distinguishes a specific game from its competitors in the market. The trademark owners are provided with the rights to prevent the use of name, characters or other related elements or that might be similar in appearance to be used by other companies. The protection under this right in the gaming industry include- trademark of branding name, logo or symbol, characters or even franchise that prevent any possible confusion amongst consumers.
3. PATENT- In the gaming industry, patents involve technological advancement in the form of innovative hardware devices, software algorithms or code, inventive mechanisms or experience, etc. It provides the exclusive legal rights to the owners to regulate the usage, sell or production of the innovation for a limited period of time in India it is typically for a period of 20 years. It prevents the other companies from making use of the innovation in any means for gaining any sort of benefit without the prior permission of the legitimate owner. In case of any infringement of the rights the aggrieved party is liable to both civil as well as criminal remedies.^[5] Hence it provides the owners the exclusivity of the game’s method, software code and the whole apparatus involved as a whole.

 Apart from these aforementioned intellectual property rights in the gaming industry, there are many other aspects that protect the intellectual property rights of the gamers, creators or developers in the gaming industry such trade secrets of their creation or software design and even the rights of publicity in the masses.

EMERGING TRENDS AND TECHNOLOGIES IMPACTING GAMING

At present, the gaming industry is continuously evolving through the utilization of advanced technology and the changing demands of the consumers that constantly result in the emergence of new trends, but most of them survive only for a limited period. There are numerous emerging trends and new technologies that greatly influence the shaping of the gaming industry that impact the overall consumer and distribution chains along with the experience. Some of the most widespread trends largely impacting the gaming industry are –

1. Artificial Intelligence (AI) –^[6]Artificial Intelligence has been incorporated into gaming to enhance the overall experience of the players, develop the gaming mechanism that as a whole adds to the revenue generation. The integration of AI in the gaming industry is a revolutionary step in many ways- creation of NPCs (Non-player characters) that very smoothly adapt to the player actions and exhibit lifelike performance, reduces the requirement of manual content creation, created more realistic as well as challenges environment to the players, any many more.
2. Virtual Reality (VR)- VR technologies have immensely the gaming experience to the players by integrating the elements of real-world experience through digital-content. This allows more nature and real interaction of the gamers with the overall gaming setup. It provides the facilities to the players to communicate through voice chats, virtual avatars, gestures etc thus creating the essence of social interaction.
3. Cloud Gaming- ^[7]This technology allows the players to Stream games directly to their devices without the use of high-end hardware, thus eliminating the requirement of an extensive gaming setup. Therefore, the players can also have access to these games through a wide range of devices including PCs, laptops, Stream essence, tablet, etc.

In addition to this there a numerous advanced technologies such as user-generated content, morning, cross-platform play, augmented reality (AR),blockchain and NFTs, live services or Games as a Service (GaaS), machine learning, etc that greatly revolutionised the various aspects of the gaming industry.

CHALLENGES AND ISSUES FACED

The gaming industry had an exponential growth from the last decade due to various technological advancement and ease in accessibility, which resulted in the increase in the number of users through various media. In this market of competition, the innovation and development rate determines the survivability of a particular gaming brand. With the increase in the quantity of games various new challenges emerge that may at times be completely uncertain in nature thus posing a direct threat to the enactment of the intellectual property rights of the concerned owners. Some of the most prominent challenges faced in the gaming industry owing to a variety of factors are-

1. There is a huge difficulty in maintaining the balance between the monetization or revenue models and player satisfaction. The revenue streams involving game sales, subscriptions ,in-game purchase questions the fairness and the Gaming experience of the players in general.
2. The increase in the rise of digital theft, piracy and copyright infringement weaken the protection of the original creation of the creators and their maintenance thus affecting the enforcement of the intellectual property rights of the actual owner.
3. Due to the constantly evolving technological trends, the creators or developers must adapt themselves in accordance to the continuously evolving programs and the diversifying needs of the users.
4. The application of new technologies such as Augmented Reality (AR), Virtual Reality(VR), Cloud gaming provides real lifelike experiences to the gamers that most of the time make them addicted to the screen and make them disconnected from the real world.
5. Providing cyber security to the users by protecting the overall data of the player, preventing online cheating and hacking is a great deal of concern to the creators and developers in the gaming industry.

CURRENT SCENARIO IN INDIA

With the progress of digital platforms and online gaming, the Intellectual Property Rights in the gaming industry continues to constantly develop and face a varied range of challenges. In the recent scenario, there is an increased focus of the enforcement of copyright protection for preventing cases of online piracy as well as unauthorised streaming or distribution of contents. The actual owners are becoming more conscious of their rights and actively pursue legal actions in case of any infringement of their rights. Along with the evolution of the gaming industry, new challenges relating to intellectual property rights arise in the form of esports, cross platform integration, user generated content, etc. imposes complex questions regarding their ownership rights. Due to the advancement in the field of communication, the market of  gaming industry has been immensely global that makes the companies suffer for being considerate of the various jurisdictions on the basis of their enforcement mechanism and cultural norms or beliefs. As a result of its dynamic nature the industry faced numerous challenges and issues regarding the protection, enforcement and improvement of the intellectual property rights due to various reasons like changing demands or evolving trends, customer behaviour, etc. therefore for the sustainability of the industry new measures and resources in the improvement of the intellectual property rights are essential to be taken.

CONCLUSION

From the above analysis it can be concluded that the enforcement of intellectual property rights in the gaming industry is extremely essential for maintaining the security and protection of the innovations, new ideas, game design or software as well as hardware programs from any illegal use. Thus, the Intellectual Property Rights provides various protection to the creators, developers, programmers and even the consumers in the form of different aspects such as patents, copyrights, trademarks, trade secrets, program design, etc.

These provide the necessary legal assistance to the legitimate owners for the protection of their creation and the maintenance of the recognition or identity of their brand in the competitive marketplace. It also enforces numerous measures for the growth and promotion of the innovation, fosters investments, protection of confidential data of the company, technological development along with the scope of fair and healthy competition.

REFERENCES

1. Yudong Yu., Intellectual Property Rights and the Gaming Industry., PQDT-UK & Ireland, (2017)
2.  Palomba, A., Gaming Industry., The Rowman & Littlefield handbook of media management and business 2, no.285,(2020)
3. Armağan Ebru Bozkurt-Yüksel., INTELLECTUAL PROPERTY RIGHTS of GAMERS in ESPORTS., Law & Justice Review 11, no.21(2021)
4.  Providing, C., Petrillo, F., Ullmann, C.G.,  Yann-Gael‌‍‌‍‌‍ Gueheneuc., Game industry problems: An extensive analysis of the gray literature., Information and Software Technology 134, no.106538,(2021)

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^[1] Kuehl, .J., Video games and Intellectual property: similarities, difference, and new approach to protection., Cybaris Intell. Prop. L. Rev. 7, no.313, (2015)

^[2] Humphreys, .S., Productive uses, intellectual property and governance: the challenges of computer games., Media and Arts Law Review 10 (4), no. 299-310, (2005)

^[3] Lexology https://lexology.com “Status of copyright protection for video games in India”

^[4] copyrights. India https://www.copyright.gov.in

^[5] The National Law Review https://www.natlawreview.com Protecting Game Patents, Trademarks and  Copyrights

^[6] Semanova, .M., EMERGING TECHNOLOGIES and Video Games Industry: Anticipation of Future Challenges.

^[7] Krishna, V.P., Emerging Technologies and Applications for Cloud-based Gaming.,  IGI Global, (2016)

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