Copyright Protection for Video Games in India

Introduction

The gaming industry is one of the fastest-growing industries in India as well as around the world, and it has been reported that “The gaming industry in Indian online sector reached US$1.027 billion in 2020, a growth of 17.3% from US$543 million in 2016.”[1] During the nationwide lockdown, mobile games, video games and online games witnessed a major surge and apps such as ‘Ludo King,’ and ‘Carrom Pool’ saw a rise in the daily number of active users online. It is also worth mentioning that the founder of Ludo King reported an increase from 13 million active users to 50 million active users after the start of the national lockdown in India.[2] However, with the increasing popularity of video games, there is also a surge in the infringement issues in this sector and there are many different aspects of copyrights that need to be considered in this regard.

Copyright Law

In India, video games may be protected under copyright law since they shall fall within the ambit of “creative works”. More specifically, different elements or components of the game shall be considered copyrightable works. It is well-known that software is granted copyright protection in India, therefore, video games resulting out of software can also be granted separate protection. The primary elements of a video game that may be protected under different categories of “works” as per section 14 of the Copyright Act, 1957 (the “Act”) include the storyline, characters, music, and parts of the code.[3]

Video games can also be protected through copyright based on Article 2 of the Berne Convention for the Protection of Literary and Artistic Works since Article 2 provides for the different types of works protected as copyright.[4]

It should also be noted that the theme of the game cannot be copyrighted because, as per the idea versus expression doctrine, the general rule is that only the expression of an idea is copyrightable and not the idea itself. For example, if there is a very important character from a game based on football, then that character can be copyrighted. Still, it would not restrict another football player's character or a game based on football.

The 1994 amendments of the Copyright Act, 1957 (the “Act”) introduced the rights of software programs.[5] The “author” has been defined under the Act as someone in relation to any literary, dramatic, musical, or artistic work which is computer-generated and created by that person.[6] Programming statements and instructions written by the developer while making a game are known as code[7]. Base code can therefore be copyrighted under software programs or literary works based on the choice of the owner. The owner has the option to choose any category to protect their work.

It is also worth noting that the Ministry of Electronics and Information Technology acknowledges the copyright protection of video games under the head of ‘multimedia products’. It defines multimedia as “a computer-based interactive communications process that includes a combination of writing, sound, image, still, images, animation, video, computer software or interactivity content forms”[8]. Therefore, it can be concluded that copyright protection can be accorded under different classes of works with regards to different elements of the game.

Copyrightable Content of Video Games in India

Gaming content can be allocated into three main categories: audio elements, visual elements, and software programs.

● Audio elements – These are a significant part of any game. These include sound recordings, background music, dialogues, animation sounds, etc.

● Visual elements – These are all the elements that are presented on screen. They include photographic images, digitally captured moving images, animated still/moving images, characters, text, etc.

● Software programs – These elements run the game. They include codes, basic design, plugins, etc.

Player license

Whenever a company sells their game, they offer a license to the buyer to use it in a particular way and abide by the terms and conditions. A company never sells the game to its consumers. The game comes in the category of copyright program, and according to the law, once a person purchases a program, then that person can make copies of the same.[9] Therefore, for instance, when a company is selling a CD containing the game, it is giving the buyer a license to play the game. Licenses can be altered according to the company. It is also worth noting that while some companies allow their games to be streamed online, others do not. Therefore, these provisions should be looked out for in the terms and conditions of the license agreement.

Cases in India

As of now, there is no case law which directly addresses the matter of copyrights in videogames in India. However, related cases may be used to interpret the current position on the matter.

One of the related cases that dealt with the issue of copyrights in games was Mattel v. Jayanth Agarwalla[10] where the Delhi High Court refused to grant copyright protection to the Plaintiff. The Plaintiff claimed copyright infringement against the Defendant over its game called ‘Scrabble’ and alleged that the Defendant had reproduced the game in another name using the same arrangement, colour of tiles, and design. The Court explained that the requirement of ‘originality’ was missing and stated that merely arranging the tiles in a particular way or colour of the tiles would not entitle them to copyright protection. The Court also cited the case of Eastern Book Co.[11] where it was stated that there needs to be some judgment and skill and a work should not be part of a mere mechanical exercise.

The Court in the case of Mattel v. Jayanth Aggarwal also referred to an international case Atari v. North American Philips[12] and stated that the doctrine of merger would apply to the present case. This doctrine means that if an idea only has a few ways of expression then granting protection to one of the ideas would mean granting protection to all and would curtail freedom of expression. Although the Mattel case is not related to video games specifically, the concept of the decision may be applied to video games as well in the future. Accordingly, this merger doctrine can be applied to many video games. In cricket games the bat and ball cannot be granted protection, the same way in golf games golf balls and golf sticks cannot be granted protection. They are the common elements and therefore are not copyrightable.

In another case decided by the Hon’ble Delhi High Court Sony v. Harmeet Sigh and Ors.[13] , the Plaintiff (SONY) had made gaming consoles known as Play Station 3 and had also developed various video games for the same. The Defendant had modified the consoles to run pirated versions of the game created by Sony. The software was popularly known as jailbreak which would break the encryption created by Sony to make it compatible with the pirated games. The Defendant would charge nominal fees from the clients and also bought an original game and made several copies of the same for distribution.

Sony approached the Court seeking injunction, infringement of trademark, passing off, restraining infringement of copyright damages, delivery up, etc. stating that original machines were modified without their consent. The Defendant had also broken the license by reproducing multiple copies of the game.

The Court then granted an ex-parte injunction preventing Mr. Singh from copying, selling ,offering for sale, distributing, hard-disk loading, modifying the processing unit of the consoles, counterfeit/unlicensed versions of software program/games of Sony which amounted to copyright infringement.[14]

Therefore, as the video game industry is becoming more and more revolutionary, new sets of problems arise related to copyright infringement. It is yet unknown that video games fall within any category of work that can be copyrighted even though specific components of the same game do, and the judiciary is yet to address specific issues of interactive gaming. It is also worth mentioning that the recognition of the legal status of the authors of these different components is significantly important to development of copyright protection in the industry.

Legal position in other jurisdictions

In the United States of America, there are multiple cases related to the video game industry. In the case of Brown v. Entertainment Merchants Association[15], the Supreme Court found that video games contain artistic elements worthy of copyright protection and are thus entitled to protection under the First Amendment. The Court stated that, “like the protected books, plays and movies that preceded them, video games communicate ideas- and even social messages through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world)”. In the same case however, the Court also stated that some elements of video games are not copyrightable “to the extent that they are necessary to execute the particular genre of work.”

In Atari, Inc. v. Amusement World[16], the Court had rejected the copyright claim, stating that certain ideas can only be expressed in a particular way therefore protection cannot be granted. This was one of the earliest cases that dealt with the copyright issue in video games in the U.S.A.

In Bissoon-Dath v. Sony Computer Entertainment America,[17] where there was some degree of similarity in the plot, theme, dialogue, characters, etc. at a generalized level, the Court rejected the copyright claim in the video game. Therefore, it may be stated that copyright infringement claims in the U.S.A have been upheld by the judiciary only when a substantial part of a game has been lifted to make another game.[18]

Conclusion

Today, the gaming industry is on the rise like never before. Modern games are software as well as a work of audio-visual art. In India, the judiciary is moving towards an ideal system. While the current statutory system does not have a specific provision regarding video games, we can see that there are many other ways by which this protection can be granted. Even WIPO has recommended that an international legal framework must be adopted for the legal protection of video games and has also acknowledged the need for legislators to address the concerns arising from online streaming and e-sports events. Therefore, we can hope for more protection of unique copyrightable works in the near future.

For any queries, please feel free to reach out to Ms. Vrinda Sehgal at vrinda@iprattorneys.com and Mr. Dhairye Arora at dhairye@iprattorneys.com.

[1] https://www.businessinsider.in/advertising/ad-tech/article/indias-online-gaming-industry-has-the-potential-to-generate-2-billion-by-2023-ey-all-india-gaming-federation-report/articleshow/85265749.cms [2] Anuka Roy, Ludo Wins Big During Lockdown, Mumbai Mirror (May 10, 2020), https://mumbaimirror.indiatimes.com/others/sunday-read/ludo-wins-big-during-lockdown/articleshow/75653005.cms. [3] Section 14 of the Indian Copyright Act, 1957 [4] https://www.wipo.int/edocs/lexdocs/treaties/en/berne/trt_berne_001en.pdf [5] Section 14(b)(ii) of Copyright (Amendment) Act, 1994 [6] Section 2(d) of Indian Copyright Act, 1957 [7] https://www.pcmag.com/encyclopedia/term/source-code [8] https://www.meity.gov.in/content/copyright [9] https://www.unimarkslegal.com/unimarks/blog/copyright-registration/copyright-video-game-india [10] Mattel Inc. and ors. v. Jayant Agarwalla 2008 (153) DLT 548 [11] Eastern Book Company & Ors. v. D.B. Modak & Anr., AIR 2008 SC 809. [12] 672 F.2d 607. [13] CS(OS) NO. 1725/2012. [14] CS(OS) NO. 1725/2012. [15] 564 U.S. 786 (2011) [16] 547 F. Supp. 222 (1981) [17] C 08-1235 MHP [18] https://law.justia.com/cases/federal/appellate-courts/F2/672/607/331150/