The industry of video games makes billions of dollars each year. Consequently, for many, it’s of the utmost importance to understand how video games are protected by copyright law. However, the answer to that question isn’t that easy. And the reason is the lack of explicit regulations on the protection of video games within the EU.
The problem with the EU copyright law, in general, is that it’s only partially regulated at the Union level (and these regulations do not include the protection of video games). Furthermore, the video games’ protection hasn’t been expressly addressed either in the national legislations of the Union’s members.
In any case, there’s no doubt that video games, when they constitute an original creation of a human mind, are eligible for protection. Therefore, let’s sum up certain patterns that may be noticed in the protection of video games in the European Union.
1. Which parts of video games aren’t copyrighted
First of all, it’s worth reminding, what parts of a video game cannot be protected.
In particular, following the general copyright law rules, only the original expression may be copyrighted. Thus, as is often being forgotten, it’s not an idea that gets protected but the idea’s expression.
Example. If someone has an idea to make a game based on the building of the kingdom, starting from a small house, going through a village and arriving to be a king of the whole territory, such an idea may be copied by others endlessly. It will be the way that idea is expressed that will receive protection (the names of the levels, the shape of the castle, the script etc.). Only the comparison of these elements of expression will give us the answer if the other game is a copy.
It’s worth noting that, similarly, also the rules of the game are not copyrightable (such as: if you don’t jump, you’ll fall; or: if you don’t run away, you’ll be eaten).
2. Copyrightable elements of video games
In that context, there is no doubt that video games are, or contain, original works eligible for copyright protection. The most characteristic copyrightable elements of a video game are:
n computer code making the game work;
n visual elements such as images and animations;
n audio elements including game soundtracks, voice recordings of characters and other sound effects; and
n other elements, depending on a game, such as a script in the games with all the story behind it, choreographies, etc.
However, a video game constitutes (not many separate works but) an entire and unique work of art, often created by many people. And, to minimise divergences between protection of its many elements and insecurity relating to the rights of everyone involved in the game’s creation, the question is how should a video game be classified as a whole.
3. Classification of video games as one work
As already mentioned, neither the EU legislation nor the local laws of the Member States have so far defined video games in their copyright laws. Therefore, their nature and, consequently, the way of protection, must be derived by scholars and courts from the existing constructs.
3.1. Possible solutions
As a result, the scholars and courts in different countries apply the following complex art constructs regulated both by the EU and the national laws, to the protection of video games:
n Computer programs
It seems natural to apply the protection granted to computer programs also to video games. In fact, video games are based on the code that makes the game work. Specifically, video games are normally composed of (i) the ‘game engine’ called also ‘middleware’, and (ii) the remaining code defining the character and details of the game. Game engines constitute a kind of a base that allows a developer to build the game on it and which is necessary to drive the game on different devices. Interestingly, the same game engines are often used in many games and are either created by a company from scratch or licensed by the special producers of these engines (see more on the game engines here), to save costs and time. Therefore, usually, video games include only a small percentage of the customized, presumably original code.
Authorship. The authors of the computer programs are, normally, their creators. Naturally, the thing gets more complicated where there is an employment relationship (the employer will usually have all or most of the copyrights). Or where the producing company commissioning the work restricts most of the rights in its favour otherwise. You can find the general rules governing the protection of computer programs in the EU here;
or
n Cinematographic or audiovisual works
On the other hand, many believe the characteristics of computer programs do not reflect correctly the nature of video games, as they disregard the whole image-voice part of a video game. And so, they prefer to consider a computer game an audiovisual work.
Audiovisual works are often defined as a series of related images, intended to be shown to the viewer. Therefore, while that definition takes into account important elements of the video game, it does not consider the important role of the code and the interactivity of the game. In fact, that definition is more suitable to describe movies. As a result, neither the definition of the audiovisual works reflects properly the nature of video games.
Authorship. In such works, the producer has usually more rights over the work when compared to simple collective works where the co-authors have equal rights. For example, according to art. 2 para. 1 of the Directive 2006/116/EC on the term of protection of copyright and certain related rights ‘the principal director of a cinematographic or audiovisual work shall be considered as its author or one of its authors. The Member States shall be free to designate other co-authors’.
Therefore, while the computer programs’ protection is inclined rather towards a kind of collective co-authorship, the audiovisual works’ protection tends to underline the role of the director. Note that these regulations are important in particular when considering small projects: the huge ones are in any case governed rather by carefully drafted contracts imposed by large producers.
3.2. So how do the EU countries deal with video games’ protection?
Across the Union, scholars and courts usually note the complex nature of video games and they rarely define the video games pursuant to just one of the abovementioned solutions. Consequently, they often take into account both ways of protection, considering video games multimedia works or hybrid works, composed of many copyrightable elements.
It’s worth noting that notwithstanding the type of protection applied, as a result of the new EU Copyright Directive the protection of the direct creators of such games will be now increased. Specifically, that Directive has introduced the ‘contract adjustment mechanism’ which allows the authors to claim a higher payment if the work of art (in our case of a video game) is particularly successful. In particular, according to art. 20, ‘authors and performers or their representatives are entitled to claim additional, appropriate and fair remuneration from the party with whom they entered into a contract for the exploitation of their rights, or from the successors in title of such party, when the remuneration originally agreed turns out to be disproportionately low compared to all the subsequent relevant revenues derived from the exploitation of the works or performances’.
4. Conclusions
As shown above, the protection of video games in the EU is unregulated and leads to confusion of those who are supposed to be protected, those who use the games and those who must apply the law. Therefore, in my opinion, there should definitely be introduced a clear and dedicated, sui generis protection of video games. It would help to avoid unnecessary doubts and regulate this huge business. In particular, such regulation would be useful, among other issues, to resolve clearly the question of authorship of video games.