The authors conclude -
Throughout this study, we have attempted to analyze the different approaches that many countries have taken in the legal protection of video games, the creators involved and the transfer of rights regimes. We observe that, on the side of a legislative (and sometimes doctrinal) void, the majority of jurisdictions tend to protect these works of authorship as software; this is so because practically the only common element of every video game is its underlying computer program. However, considering the latest developments in technology, it is important to stress that, in many cases, different video games will share similar source codes or “game engine” when developed using the same software (middleware). This element needs to be taken into account when analyzing the legal nature of video games. Answers to questions on legal protection may be different from those applicable 20 years ago. It is clear that as the industry continues its stable evolution, solutions for the legal protection of video games may continue to vary in the upcoming years.
It is our opinion that video games are complex creations, composed by multiple copyrighted works (e.g., literary works, graphics, sound, characters and software) which deserve independent legal protection. Although the majoritarian trend considers that software is the prevailing element of video games, we believe that the distinguishing element of one video game from another will not be the underlying software only, but also the various audiovisual and literary elements created for each video game. Those may also include performances by actors and musicians. In parallel, given that this is an ever-changing industry, we acknowledge that some video games (for example, those simple games developed for social networks or for smartphones, such as popular card games or bubble shooter games) do not stand out for their audiovisual elements and would need to seek copyright protection through their software. Therefore none of the elements neither the software nor the audiovisual, would necessarily prevail; a distributive approach seems to be appropriate, insofar as a video game is made of both elements.
At the international level, although the TRIPS Agreements and the WIPO Copyright Treaty (the “WCT”) include references to software and audiovisual creations, multilateral treaties provides little specific guidance regarding the protection of video games. Given the complexity and the economic significance of video games, the international community may take into account the opportunity of discussing and analyzing this topic. The authors of this study envisage the possibility of establishing a special regime of protection for video games as a whole in a similar fashion that many countries have done for audiovisual works. That could perhaps also introduce specific contractual rules in order to regulate the relationship between the different stakeholders involved.
It is extremely hard to draw precise normative recommendations; nevertheless the following elements could be taken into account in pursuing an international debate on the protection of video games:
A. An international legal framework solution, whether binding or non-binding, should consider the establishment of a special regime or a sui generis legal protection for video games.
B. Considering that video games are mostly developed by medium-sized and large companies, a discussion on the legal regime of video games should address the role that these entities play and the rights they require to obtain in this process. Such companies usually take the initiative and the risk, and provide the necessary resources, both financial and human, to create the work; thus they should have, at least, all the exploitation rights in the resulting work. This can be achieved by establishing a presumption of transfer of rights in favor of the video game producers, unless agreed otherwise via contract.
C. As for other subjects involved in such creations (e.g., scriptwriters, designers and animators), considering the complexity of these works of authorship, it is not feasible to determine a priori who are the subjects that deserve being qualified as authors. For instance, in the context of cinematographic works, Article 14bis of the Berne Convention provides for a special regimen of ownership of copyright allowing, inter alia, legal transfer and presumption of transfer. Accordingly, some jurisdictions have specified which individuals are to be considered the authors of a cinematographic work (generally, the scriptwriters, the director and the composer of the original soundtrack). However, we do not recommend that a similar regulation be applied to video games, as given the above-mentioned complexities, the persons who may contribute creative and original elements to the work may vary in each case. Therefore, a case-by-case analysis should be undertaken in order to determine which contributors to a video game should qualify as the authors, which will depend on the type of game, the creative contributions of the individuals and other relevant factors.
D. Finally, as discussed in the introduction, there are other stakeholders in the value chain of this industry, including publishers, marketing experts and quality assurance testers. These are important players in the industry, with essential roles; however, they do not contribute to the creation of the work itself. Their endeavors can guarantee the commercial success of the video game, but this does not indicate that they have contributed creative elements to the work.
Given the continuing evolution of technology, it is now possible to record a gameplay and broadcast it. Indeed, television programs that report on video game news are common in developed countries and in nations like the Republic of Korea video game championships are also broadcasted live. Internet live-streaming of gameplay is even possible with some game consoles.
It is not unrealistic to expect that, in the future, video game tournaments or seasonal leagues will be aired and gameplays will be narrated as sporting events are today. Therefore, according to this scenario, lawmakers might also need to address the issue of which rights should be obtained by television networks or Internet websites that air a given gameplay, and who shall benefit from such exploitation.
We think it is understandable that video game producers should own the right of authorizing the exploitation of any image generated by a video game. Thus a legal instrument on the legal protection of video games could also guarantee the producer’s right to authorize any exploitation of the game, including audiovisual elements. Consequently, in order to concede a fair and reasonable copyright protection to video game developers, legislation should expressly address this issue by granting rights holders the exclusive right to authorize any reproduction, distribution, communication to the public or transmission of video games.
Whether other individuals, such as the authors, should or not also have certain rights on these kinds of exploitations is more controversial and will depend on the discussions held at an international level. Indeed, those national legislations that are very protective of authors, including many European countries, might consider granting a remuneration right to them, in terms similar to the rights that audiovisual authors currently enjoy. On the other hand, other countries, such as the United States of America, are likely to prefer the opposite solution.
Finally, considering the current “contractualization” of copyright, many aspects of the relationship between video game producers and authors, independent contributors or even game players, ultimately are regulated by contractual agreements. Aspects like the salary authors shall receive for their contribution to a game, whether fixed, variable or a combination of both; or the legal status of the creative elements made by players involved in interactive online gaming, will be resolved, in the first case, by employment agreements and, in the second, by user contracts.
In order to prevent possible abuses, it is recommended to enact rules that guarantee a fair compensation to authors who have contributed significantly to the success of a video game or have created original elements that permitted the video game producer to obtain substantial profits, whether these authors are employees, independent contractors or mere online gamers.
In conclusion, in light of the importance of the video game industry and the uncertainties due to a normative void, it is suggested to consider the opportunity to undertake an international debate that could potentially lead to a regulation on the protection of video games. This would allow addressing unresolved issues, including the protection of video games as singular works of authorship, the relationships between authors and producers, the question of who can qualify as an author and an enumeration of those authors’ rights. Insofar as it seems that no country in the world has regulated this matter in detail, now is the perfect time to approach a harmonized, international solution for an eventual implementation in domestic legal regimes.