Games – A house of IP?

In Insights, Uncategorized

17 June, 2016

For the second consecutive year Awapatent attended the Nordic Game Conference (NGC). The conference was held at Slagthuset in Malmö, during May 18-20 2016. NGC is one of the largest video game industry exhibitions in Europe with a heavy focus on business and networking.

The video game industry is growing rapidly. Nowadays gaming is casual and almost everyone is a gamer, primarily thanks to smart phones. A game can vary in form, from a charming simplistic puzzle game on a phone to a bombastic cinematic first person shooter on a monster PC. A game can be made by a single developer but also by a thousand-person team. When the game culture transfers from a small sub-culture to something as self-explanatory as movies and literature there will be opportunities.

Games challenge the traditional ways to solve IP problems. Games are interactive, and differ from traditional narrative entertainment. Games are a high-tech product, created from cutting-edge digital technology, but ending up as an entertaining experience to the end user. A game represents thousand of person-hours invested in the development, and these person-hours represent innovation in even minute details.

Games are houses of IP, and by this I mean that IP constitutes the bricks and logs of games. To protect an investment worth thousands of person-hours, IP may be a fundamental key to commercialization and in the end, profiting on a game development project.

Game content as a whole is primarily protected by copyright. A game is built on programming code and is therefore by all means a computer program. But both the purpose and the user interface of a game differ from a traditional computer program. Different important copyright rules may be applicable on computer programs, which may not be applicable on other categories of works, and vice versa. An example of the latter is the InfoSoc directive (directive 2001/29/EC), the directive regulating copyright in the information society, which expressly is not applicable on computer programs. The applicability of article 6 (the right to technological measures) on video games was the main issue in the ECJ case C-355/12 Nintendo. The court stated that the video game in question could not be solely reduced to a bearing programming code but has unique creative value and therefore the InfoSoc directive was applicable in lieu of the Computer program protection directive (directive 2009/24/EC).

According to my own opinion, every game has to be individually assessed, and this shows the complexity of games and copyright. We all agree on that video games are copyrighted works, but the interesting question is rather how video games are copyrighted works.

Viktor Johansson, Associate

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