Intellectual Property Law for a Budding New Industry - The world has changed a lot in the last twenty years. Where before entertainment was found in books, sport or the performing arts, modern technology has built upon all three of these to create new forms of entertainment media in the form video games. The video game, as a product, has become an entertainment commodity of epic proportions. The average age demographic for video game players (referred to as ‘gamers’) is constantly on the rise. This means that there are more people willing and able to spend money on these products. At the end of 2011, world-wide statistics listed the total revenue of the entire video game industry at $65 billion. This surpassed both the music and film industry in the same year by a noticeably wide margin. It should suffice to say, therefore, that this industry is no longer the outer rim of the technology industry, but a giant in its own right. This is further supported by the fact that many innovations such as motion sensing technology that are commonplace today saw their inception in the video game industry.
Video game law is an often neglected sphere of law on our side of the Atlantic, however if Europe wishes to remain competitive in all spheres of the ICT industry, this tendency is ripe for change. Video game law covers a wide variety of topics ranging from Intellectual Property Law to the sphere of Criminal Law. The latter is becoming more of an issue with respect to those games boasting internet based business models. These have seen an increase in theft by way of hacking. This matter, however, warrants its own discussion and will not be broached further in this article.
One of the most important things for the purposes of sowing the seeds for such an industry is the implementation of good intellectual property laws. At the heart of the video game industry, like all technology industries, is a constant battle for the protection of intellectual property rights. This applies both against piracy as well as infringements of intellectual property rights by competitors. Malta’s laws have developed over the years in regard to intellectual property and are currently influenced mostly by European Law. Copyright is the area which is most pertinent to the video game as a product as this is the measure that effectively guards the substance of the product. With growing talk about cultivating the industry in Malta, it is important to consider Malta’s legal framework in this regard. This article will therefore take a closer look at Maltese intellectual property laws and whether they are ready to protect the video game as a product.
It’s All About the Game – But What Is It Exactly?
There is literally far more to the video game than meets the eye. When examining this product, one is faced with something that is one part raw technology and the other part a work of art. A video game is effectively a program in and of itself. This program, on its own is entirely inert in that it cannot be used without the proper tool to give effect to the program. For this we have platforms, which are either dedicated consoles or desktop computers. The program itself remains a work of technology which is subject to copyright law anywhere in the world and patent law in some countries as well such as the United States.
The other important element of the video game is the output of the program. This can be called the ‘Artistic’ element of the video game. Through the operation of the platform, the strings of code embedded in the program are transformed into images and sounds perceived by the gamer. These however, are not created by some work of magic but by what could be a small army of artists charged with the task of creating something aesthetically pleasing and entertaining in equal measure. Furthermore, those games deemed as being of ‘AAA’ standard have also been known to engage some elements of the film/television industries such as actors and writers to participate in such projects. To cite an example, one can take Sir Ben Kingsley and Michael Fassbender lending their vocal talents to the latest iteration of Peter Molyneux’s “Fable” series. Another example would be Jesse Stern, writer and co-producer of the American television show “NCIS” also penning the story for “Call of Duty 4: Modern Warfare”. An even more recent example would be that of actress Ellen Page giving both her voice and likeness to the upcoming game “Beyond: Two Souls”.
Basically, for the purposes of intellectual property law, it has been proposed that the most important consideration in regard to protecting the program and the output of a video game involves treating the same program and output as two separate categories of work. Also, for the purposes of this discussion, all merchandise associated with the product will not be considered as falling within the scope of this article. The same applies to those issues relating purely to the platforms.
Programmed for Perfection – Is a Program Safe in Malta?
The protection of a computer program under intellectual property law is an issue which the European Union has provided for in directive 2009/24/EC. This directive immediately stipulates that the computer program is to be protected by copyright law as a literary work. This effectively means that the protection goes to the program as it has been expressed and not its underlying idea. This is a viable approach in that protecting the underlying idea can open Pandora’s Box by restricting competition severely. If every product was required to reach such a level of originality, there would be far less products on the market at much higher prices. On the other hand, giving too little protection in this regard would fill the market with extremely similar products often referred to as ‘clones’ which is hardly the ideal in an industry based on originality and innovation. To address this issue, the directive also extends this protection to the preparatory design material used in creating the program. This can involve flow charts, diagrams and other documents used as the proverbial ‘rough sketches’ of what will eventually become a fully functional program. While this does not entirely eliminate the possibility of market clones, it forces competing companies to be far more subtle in their approach by forcing them to at least innovate on some elements before release.
It stands to reason that like any copyrighted work, the most common form of infringement is piracy. Unlicensed copying is considered the greatest problem that any creative industry faces in the modern day. Video games are no exception to this rule. When considering the concept of ‘Copying’ one has to distinguish between copying as a technical necessity as shall be illustrated in the paragraph below and copying for unlicensed distribution. The latter is a notorious form of infringement in the same vein as film piracy and is prohibited under the Copyright Act along with several other acts which can only be performed with the permission of the copyright owner.
Shifting scenario to the more technical level, few people realise that in the process of using a program, a machine is constantly copying strings of data to store in the RAM for quick access. American jurisprudence has, since the 1980’s, considered this to be exempt from copyright law as it constitutes a technological process which is considered ‘transient’ and ‘incidental’. From the perspective of European Law this creates no issue either as the Infosoc Directive creates a mandatory exemption identical to that used in the United States. This has been transposed into Maltese law as well and effectively constitutes the reason why playing video games or the conventional use of a computer program is not copyright infringement in itself.
Another issue is the concept of reverse engineering of programs. This tends to be a problem which developers face very in the wake of releasing a successful product. Within a period of six months to a year of releasing such products, the market ends up seeing the announcement of several suspiciously similar products to a hit game. A historical example would be the tens of clones of ‘Command and Conquer’ right after it was such a huge success in the mid 90’s. This is a particularly severe problem on facebook and other social networks boasting ‘apps’. In this regard ‘Zynga’ had once filed an injunction against the Brazil based company ‘Vostu’ for having provided a game which was extremely similar to Zynga’s ‘Cityville’. Zynga proved this was the case by analysing the code and discovering that in spite of the different textures used in the game, both ‘Cityville’ and Vostu’s product had exactly the same bugs in their programming. This case stands as a simple example of developers copying or reverse engineering one another’s products. Maltese Law makes this activity illegal in its entirety thanks to the provisions of Article 9(2)(b)(iii) of the Copyright Act. This provision effectively prevents any developer from splicing the source code of a product in order to determine its functions. An issue which remains a concern in this regard is that of ‘Clean Room Reverse Engineering’. This involves having one team observe the program in action while another team is simply given an abstract description of the functions in order to build them from scratch. While this is not copying in the literal sense, it is still likely that due to the logic based nature of programming, a developer could end up recreating some identical strings of code unintentionally. Worse still, the wording of Article 9(2)(a) of the Copyright Act potentially allows this approach under the guise of observation and study. How this issue gets treated will eventually depend on judges if such a case should ever find itself in our courts.
Patenting a Program
This is an area where the EU and the US differ fundamentally. Patents have been awarded for programs and even video game programs in the US for decades while nowhere in the EU was this ever done. US lawyers see this level of protection as a point of pride, while developers, particularly start-ups, consider this to be the worst thing about developing in the US. This is further exacerbated by the presence of Non-Practicing Entities (NPE’s) who have been known to patent ideas and leave them unused. They then use these patents as legal bear traps by waiting for someone to infringe them and then capitalise on the patent through infringement lawsuits. Maltese Law has precluded this entirely by excluding computer programs from patent law entirely. With the EU currently in the process of adopting the Unitary Patent system, it remains to be seen what further developments may arise in this are on a pan-European level. At present, however, this exclusion could be Malta’s, if not all of the EU’s, trump card for the purposes of incentivising start-up developers to set up.
Preserving the Craft – Supporting Protection for the Arts
The output of a video game’s program is effectively a collection of copyrightable works rolled into a single piece. The main point of debate in this area is whether all the works involved ought to be protected as separate works, or whether it makes more sense to give them a single holistic protection regime. Maltese law already bears the necessary provisions to protect music, images and all other works that may have led to their creation. Nonetheless, this would create a situation where every element is a separate protected work, making it more possible for certain pieces of the product to escape protection. This would also create a rather inconvenient situation from a court perspective as it would require judges to issue long and cumbersome judgments detailing the infringement of every copyrightable work pertinent to the case. I believe that this method would be inefficient as it would mean longer times to formulate judgments and would make those same judgments overly technical. This would not necessarily force a judge to use the holistic approach at all times but would at least have the option to do so for the sake of simplicity when the infringement involved several works. In an industry where time is essential to success, any inefficiency in the court system could be fatal. This means that a holistic approach is essential.
It has been suggested in the UK to protect the output as a database collecting all the works together as a form of holistic protection. This approach would be flawed in that it would protect the order in which they are configured in the database but not the works themselves. These would end up having to be protected separately, meaning that the protection would still be separate with an added dubious layer of protection in the form of the database. Also, since the use of the works is interactive, causing the order of appearance of the works to be mutable, it is debatable whether this would even afford any level of protection to the output at all.
A truly holistic approach to protecting output is entirely possible, however, under existing copyright legislation in the form of the ‘audiovisual work’. This has been the approach taken by American jurisprudence since the case of Stern Electronics vs Kaufman. This case effectively dispelled any possibility of the interactive nature of the video game being used to deny the video game its status as an audiovisual work. The EU has been far slower in addressing this issue, with academics only recently starting to discuss it.
As a legal professional and a gamer myself, I feel that the output of a video game is necessarily an audiovisual work for the purposes of intellectual property law. Maltese law has fortunately provided extensively for the protection of audiovisual works, meaning that it would not be an issue to utilise this approach for a holistic protection regime.
Having considered the video game both in terms of being a program as well as in terms of the output of that program, it can be seen that the main area of law that is applied to this product is Copyright Law. While patents are an option with respect to the programming element, this would likely only hurt the market rather than help it grow in Malta. This is due to the stifling nature patents could have in this area, owing to the fact that the video game is just as much art as it is technology. This marriage of innovation and imagination causes intellectual property lawyers and legislators to perform an on-going balancing act between protecting the rights of a developer over his creation without backing other developers into a corner where they may not be able to build on older ideas.
Furthermore, it can be said that because of the existing legal frameworks being what they are, the protection afforded under intellectual property law has to be applied to both the program and the output separately. Under the existing laws they simply do not overlap. Nonetheless, extensive developments in EU law regarding program protection leave one confident that this area does not require much concern. With respect to the output, however, it must be asserted that further developments in this area both locally and at EU level are imperative to incentivise companies to set up in Malta or anywhere in the EU for that matter. It is time that we moved passed the 80’s mentality that technology is the enemy of the arts and embrace it as a new evolution in art that deserves the protection of intellectual property law. Only in doing this can this creative industry truly flourish.
For further information, please contact Dr Matthew Galea Debono.