Author: Koushik Gorain, National University of Study and Research in Law, Ranchi
Kumar Ankit, Rajiv Gandhi National University of Law, Punjab
The post-pandemic era has brought a lot of difficulties variably to approximately all the sectors. Work from home has been troublesome and adversely affected their growth. However, amid this difficult time, the gaming industry has been successfully flourishing like never before. According to reports the global gaming industry will be 178 billion $ by end of 2021 and will further escalate to 268.8 billion $ by 2025. Also, the mobile gaming industry due to cheap equipment has a huge user base that stands at 2.69 Billion and is expected to rise at a 12.6% for the next few years. It also has revenue of over 77.2 billion $ in 2020. And the post-pandemic world will only glorify these numbers. As a result, many multinational companies recognized and invested heavily in this sector. In this article, we are going to briefly analyze the complexity related to granting copyright protection to video games and the implications of Indian copyright laws in this regard. Also, we will try to find the lacunae relating to video games in copyright laws in India and ways forward to counter them.
Before moving forward with the copyright and related issues, we must be aware that video games generally consist of 2 essential elements:- audiovisual elements which broadly consist of videos, soundtracks, audio, animations etc. and software/computer program which runs the game. Technically it manages the audiovisual elements and permits the interaction between the player and the game. Video games are not merely audiovisual work but require the active participation of the user to proceed with the game. Therefore, interpretation of video games as cinematography is not desirable rather bringing it within the scope of artistic works makes more sense. This can be traced by the 2011 US Supreme court judgement of Brown v Entertainment Merchants Association in which for the first time it was ruled that videogames are protected speech like other forms of art under the first amendment. Also on non-judicial grounds in March 2006, the French minister of culture first characterized video games as culture goods as a form of artistic expression, granting the industry tax subsidy for the same. But with the growth of technology; graphics and animations also get popularized and widely used by creators to attract the public. Games like God Of War, use it as a storytelling and character build up method to maintain the user’s attention towards the game. This cinematic display overall makes the game more interactive. Hence, the cinematographic element of a video game cannot be entirely ignored.
INDIAN COPYRIGHT LAWS
Upon scrutinising Indian legislation, it will be found that there is no expressed provision related to granting copyright to video games. Due to lack of jurisprudence; interpretation and application-based protection is the only way forward for the judiciary. But this does not solve the purpose entirely. Currently, section 2 of the Berne convention provide a strong basis to copyright video games but it can only be applicable if there is proper ratification regarding the same. Since, India has not ratified it, the only rescue for developers is through the “Copyright act, 1957”.
The video games contain several parts when combined, constitute the final version. A chain of people putting their effort and time together such as character designer, music and animation creator, graphic designer, producer, programmer etc to develop a game. Apart from these, there is another aspect of game development, which is a contract of service and contract for service. In the case of the former since there is an employer-employee relationship that exists, the company can claim rights over it. Whereas in the case of the latter it is ambiguous whether the employer or the developer is deemed to be the first owner of the copyright. The test to ascertain whether one fall within the category of the contract of service or not is decided over the employer’s control over the manner of execution of work. However, as held by SC in Silver jubilee tailoring house v Chief inspector of shops and establishments that control itself is not always conclusive factors but It also depends on the degree of control, opportunities of profit and loss, investment in facilities, permanency of relations and skill required in claimed independent operation also play a significant role. Also unlike the era of the 90s, nowadays developers use 3rd party game engines instead of generating new engines for each game. Game engines are the core software to properly run a video game, unlike game codes this can be reused again and again and provide a facility to avoid the development of a game from scratch. Due to so many ambiguities and lack of precedent, video games are not generally given copyright as a whole. However, certain individual elements such as characters, audio, video, game codes, dialogue, storyline, animations could be granted copyright respectively under various sections because they are qualified as artistic works.
Let’s take the example of Subway surfers and hypothetically check the applicability of India copyright law on it. Copyright could be granted for the name under Trademark act, 1999, for characters and their design, animations, videos under section 14(b), for music and theme song under section 14(e) and game code(original artistic work) under sec 13, but due to lack of substantive precedent all these rights cannot be guaranteed. Previously mentioned elements are valid grounds for artistic work but the basic Idea about escape until you get caught or die is not copyrightable as mentioned under the doctrine of “scenes a fair.” According to Duhaime’s Law dictionary, it can be defined as ‘elements of an original work that are so trite or common that they are not captured by copyright.’ It was discussed first time in the case of RG Anand v M/s Deluxe Films where it was held that copyright can’t be acquired over an idea. Further in the judgement of Mattel v Jayant Agarwalla did not grant copyright to the plaintiff stating that mere design or colour and arrangement of tiles in some specified manner is not intellectual enough to qualify as originality. It goes on to state that if something like this is given protection, it will be like copyrighting an Idea which would be a violation of freedom of expression to some extent. This justifies the games like Sonic Dash, Zombie run2, temple run 2, Rail Rush, Blades of Brim etc and their popularity among the audience.
A similar analogy follows in the case of PUBG, Fortnite, Counter-strike, Free fire, CoD etc. All these games follow a similar Idea which commences from dropping into an island and conclude with the last person alive. The basic objective remains the same in each of them and hence, no one could claim copyright over it.
There is a lack of judicial decisions regarding copyright in video games in India. That’s why the Delhi High court judgement of Sony Computer Entertainment ltd v Harmeet Singh has a substantial role to play as a precedent. In this case, a shopkeeper was allegedly involved in modifying and uploading pirated software in gaming consoles sold by Sony against nominal charges, due to which the device became compatible to operate with the pirated versions of the game. It was held that copying, selling, distributing, and modifying consoles with counterfeited versions of consoles amounts to copyright infringement as done against the consent of the parent company.
UGC – A INTELLECTUAL PROPERTY OF USERS
Due to the rise in social media users, there is a gradual increase in demand for multiplayer games which leads to UGC or User Generated Content. Various games provide features that allow users to create their playable content such as new levels, modify game mechanics, appearance and add or create soundtracks. These are being done through mods(custom modification in-game mechanics and design) or machinima(gameplay used to create animated content). This development can further be shared among each other in the multiplayer genre. A prime example is the original “Half-life” game which was modded and added with an exclusive multiplayer feature that became popular among the audience. Later noticing the success of the game, the owner VALVE published it under a new name now popularly known as “Counterstrike”. Making changes within the components or developing a new mechanism should qualify under artistic work as it requires a certain level of intellectual elements. Today UGC is bigger than ever, with the increased users of PlayStations which provide a platform to generate changes this user-generated content will continue to rise and it is necessary to protect the rights of those individuals who make changes inside the games and make it more popular. Due to the unending and interactive environment among the largely introverted gaming public, it is need of the hour to provide a complex mechanism of protection. Lack of lawful protection shouldn’t be the reason to excuse big corporate and let them infringe the intellectual property of users.
From the article, we got acquainted with the fact that the current statute prevailing in India is not enough to protect game developers. While the development of the gaming industry is in an upward trajectory but the laws which regulate them still are obsolete and ambiguous. This is a hard time, India needs separate legislation to manage those ambiguities and grant copyright protection to the deserving. The absence of legislative protection creates problems among international and Indian developers since a large number of video games are currently played in India and developed in foreign countries. The lawmakers need to examine, agree and implement laws on the legal classification of video games, developed in India and outside which will protect the intellectual property of developers. Along with these, in-game character development, live streaming and other complexities should be kept in mind while developing gaming-related laws. Amid these, looking at the enthusiasm among the young population, the Minister of Youth and Sports Affairs properly recognise E-sports in February, and also differentiate it from betting and gambling shows that government is enthusiastic about providing the gaming sector with well-regulated laws. This is the first step towards the video games copyright law and should be celebrated.
 Statista, https://www.statista.com/statistics/292056/video-game-market-value-worldwide/ (june 25, 2021)
 Newzoo, https://newzoo.com/insights/articles/newzoo-games-market-numbers-revenues-and-audience-2020-2023/ (June 27, 2021)
 Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011)
 Section 17(c), the first owner of the copyright in case of work done in case of author’s employment under a contract of Service shall be the employer in absence of any agreement contrary to same.
 Silver Jubliee Tailoring house v. Chief Inspector of Shops and Establishments, 1974 AIR 37
 Sec 14(b) authorize the author of a computer programme to reproduce, perform and communicate in public, translation, adaption, making copies of the computer program.
 Sec 14(e) gives the right to the author to make other sound recordings embodying the sold original copy, sale, hire and use it in the public domain.
 R.G. Anand v. M/S. Delux Films & Ors., 1978 SCC (4) 118
 Mattel, Inc. and ors v. Jayant Agarwalla, 2008 (153) DLT 548
 Sony Computer Entertainment Europe Ltd. v Harmeet Singh & ors, 2012 (51) PTC 419 (DEL)
 Sankalp Jain, Video games, User-Generated Content and Copyright, SpicyIP, June 18 2020, https://spicyip.com/2020/06/video-games-user-generated-content-and-copyright/