INTRODUCTION
The present Indian landscape lacks direct intellectual property protections concerning electronic/video games, being complex compositions of various artistic and technical elements such as character designs, backgrounds, soundtracks, narratives, game codes, etc, which not only take years of development and planning, but humongous resources and capital to develop and distribute. It may be noted that the electronic/video games industry faces not only challenges in the realm of creating original narratives/content but also in the absence of codified/specific legislation encompassing the intricacies of the elements of the games, face a myriad of challenges such as game cloning and digital piracy, which lead to unauthorized distribution and replication/reverse engineering of popular games and infringement of their intellectual property. The skill-based games are centred around unique elements which call upon its users to exercise their mental skill, superior learning and adroitness, and these features require sweat and hard work of the author and creator.
In India, the absence of specific regulations for the gaming industry leaves video games uncategorized under intellectual property law. While trademark law can protect the name, characters’ unique identity, symbol etc. of the game, it still leaves a wide array of intellectual property elements unshielded. The software industry has tackled this challenge of infringement by replacing serial numbers and keys with login credentials, thereby, making the gaming software the service, however, with limited success, especially in the context of electronic/video games given the aspect of jail-breaking, side-loading, pirated version with ease, which in the view of the authors are currently protected in a very curtailed and limited manner in the copyright regime.
In India, as there is no specific regulation governing gaming industry, and thus, video games are also not categorized under any specified group of Intellectual Property Law. Although, a description of “cinematography works” does exist in the Copyright Act, 1957 under Section 2 which states “any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and ‘cinematograph’ shall be construed as including any work produced by any process analogous to cinematography including video films.”
The preceding description makes it apparent that the “process akin to cinematography” is defined in such a manner that video games are evidently included in the scope of Copyright.
Furthermore, because the Copyright Act permits computer programmes to be secured as literary works according to Article 10 of the Trade Related Intellectual Property Rights Agreement (TRIPs) which specifically provides that computer programs, whether in source code or object code shall be protected as literary works under the Berne Convention, 1971 (Berne Convention).
Even though there is no codified law in order to protect games, but the existing law provides for hypothetical protection for e-Sports, such as Trademark Law which helps protect the e-Sports’ name, the characters unique identification, and the symbol.[1]
CASE LAWS[2]
The courts in India have underscored the necessity of comprehensive copyright protection for all elements of a game, including the musical works, characters and storylines within the games, and the requirement of sound and proper licensing agreements. Yet, there are only a handful of cases such as NS Bedi vs NHAI, where the audio-visual element comprising of the unique user interface in a traffic simulation game was conferred copyright protection by the court.
In India, the case of Sony Computer Entertainment Europe Ltd. v. Harmeet Singh, 2012 SCC OnLine Del 6505, was the only significant judgement on copyright in video games.
The Delhi High Court issued an interim injunction against defendants for copyright infringement under Section 65A of the Act for modifying PlayStation systems to enable pirated games and selling pirated games without a license.
In another case of Tata Sons Limited v. Greenpeace International, 2011 SCC OnLine Del 466, the Delhi High Court was presented with a scenario in which the defendants were exploiting their registered Tata trademark in a game. The game featured turtles attempting to escape the Tata logo in the style of the popular video game Pacman.
The Court weighed the commercial or communicative goal of the speech, as well as the fact that this game was in the form of a parody, in balancing the legislation’s responsibilities under Freedom of Speech and Expression.
In this case, the trademark was used to criticize Tata, hence no infringement occurred.
One such case, that dealt with Copyright issue is Mattel Inc. and Ors. v. Jayant Agarwalla 2008 (153) DLT 548, where the Delhi High Court refused the copyright protection sought by the against the claim of infringement against the Defendant for its game ‘Scrabble’.
The Plaintiff alleged that the Defendant had duplicated the game under a different name utilising the identical layout, colour of tiles, and design. The Court clarified that the criteria of ‘originality’ was missing and observed that just arranging the tiles in a particular way or changing the colour of the tiles would not entitle the Plaintiff to a copyright protection.
The Court referred to Eastern Book Company & Ors. v. D.B. Modak & Anr., AIR 2008 SC 809, wherein it was held that there must be some judgement and ability and that a work should not simply be a mechanical exercise.
The Court in the above-mentioned case, also referred to an international decision, Atari v. North American Philips, 672 F.2d 607 (7th Cir. 1982) and stated that the merger concept would apply to the current issue. This philosophy states that if an idea only has a few possibilities of expression, protecting one of them would imply protecting all of them, limiting freedom of expression.
Although the Mattel case is not directly relevant to video games, the decision’s premise may be applied to video games in the future. As a result, this merger philosophy can be used to a wide range of video games. In cricket games, the bat and ball are not protected, while in golf games, golf balls and golf clubs cannot be granted protection. They are the common elements and therefore, not copyrightable.
Thus, the above-mentioned precedents indicate that Judiciary is moving towards creating an ideal system for protection of gaming industry in India.
THE INDIAN LEGISLATIONS[3]
Though there are no specific legislations, the gaming industry is interpreted to be governed under the following legislations:
- Copyright
In the Indian scenario, video games can be protected under the Copyright Law as they fall within the ambit of “creative works”. More specifically, the different elements of these online games can be protected as Copyrightable work.
Additionally, software gets protection under the Copyright Law and so video games created through software can be protected in the same way. The “works” defined under Section 14 of the Copyright Act, protects under its ambit, storyline, characters, music, and parts of the code. Thus, major elements of video games can be under the said section.
Moreover, Article 2 of the Berne Convention, protects various Literary and Artistic works, and video games can be protected under the ambit of the said Article. Since, India is part of the above mentioned convention, video games in India can also be protected under Article 2 of the Berne Convention.
- Trademark
The names, logos, and symbols connected with the game, as well as its characters, are all protected by trademarks.
Section 30 of the Trademarks Act, 1999 (hereinafter referred to as the “Trademarks Act”), establishes some exceptions in which nominative and descriptive fair use may be implied in such situations.
Section 30 (2)(a) of the Trademarks Act, which refers to the use of a registered trademark in a descriptive way, i.e. used in connection to products or services to indicate the sort, quality, amount, intended purpose, value, geographical origin, time of production of goods or rendering of services, or other features of goods or services.
Subsequently, Section 30 (2)(d) of the Trademarks Act discusses about the use of a registered trademark by a person in regard to goods altered to form part of or be accessories, provided that it is ‘reasonably necessary’ to indicate that the goods so adapted are compatible with the goods marketed under the trademark.
- Patent
The Copyright Act protects the expression of computer code methods and hence cannot protect the “operational techniques and methods”. Thus, Patents Act, 1974 ( hereinafter referred to as the “Patents Act”), comes to the rescue.
The Patents Act protect the scope i.e. the operational aspects of the game rather than the theoretical aspects i.e. the process of development and the product that is developed.
Thus, according to Section 3(k) of the Patents Act, it is necessary to establish that any hardware is of equal importance to that of a software and a software needs to be attached to gain patent protection.
In case of a video game, software is linked with a hardware, which means, the console and controller, both of which are equally important parts of a video game thereby video games getting patent protection in India.
- Industrial Design
Section 2(d) of the Designs Act, 2000 (hereinafter referred to as the “Designs Act”), defines “design” as any features of shape, “configurations, patterns, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye. “
Hence, the graphic characters of the games, as well as their gaming cover and graphic interface, are all protected under the Designs Act. Industrial Design Protection in the gaming industry protects only the outward aspects like forms, lines, contours, colours, and textures of the game characters and other models under the abovementioned section, and not any technological functioning.
- Licensing
Video game licensing is critical to the success of video game development, distribution, and marketing. The original owner of the game can enter into various licensing agreements for the sale and distribution of its work.
The creators and developers have been including licensed content into their games from the inception of the industry, not only to fascinate everyone, but also to attract a larger audience via the use of familiar technology to produce more genuine games. Licenses must be written in accordance with Intellectual Property Laws to protect the designer’s legitimate interests.
[1] https://amlegals.com/legal-challenges-pertaining-to-intellectual-property-rights-in-the-gaming-industry-in-india/#
[2] https://www.azbpartners.com/bank/navigating-intellectual-property-challenges-in-indias-electronic-gaming-industry/
[3] https://amlegals.com/legal-challenges-pertaining-to-intellectual-property-rights-in-the-gaming-industry-in-india/#
