'Intellectual Property Law in Gaming and Artificial Intelligence' by Enrico Bonadio and Alina Trapova in Chris Bevan (ed), Handbook on Property Law & Theory (Elgar, forthcoming 2024) comments
This chapter focuses on copyright and patent aspects of AI in gaming. As is known, copyright law protects original creative expression, while patents safeguard new inventions capable of industrial application. On the copyright side, the central classic question is what video games are in terms of protectable subject matter. This issue of the video games’ legal nature is rather old, but still pertinent topic. By now, it has been widely accepted that video games are complex subject matter from a copyright perspective, comprising not just a software, but also graphic and sound elements that contribute to the unique creative value of the game. That said, different jurisdictions adopt varying approaches to the nature of video games with some classifying them as predominantly computer programs and others dissecting the different elements in the game or treating the game as an audio-visual work as a whole. Patents instead have historically attracted less attention. Nonetheless, these can be extremely important for some hardware, software, development tools and other middleware companies, but as it currently stands the considerable cost tied to patents renders them less utilised in the field.
Against this background, AI has stepped in to not only disrupt classical IP models, but to also offer a wide range of immersive interactive experiences for gaming; thus, opening new avenues for exploitation. As far as copyright law is concerned, the infusion of an AI element into the game provokes questions of authorship when it comes to in-game creativity. Put differently, who is the author and owner of creative expressions when they are created by players within the context of playing the game where certain interactions are driven (and often dictated) by AI? When it comes to patents and AI in this industry, central issues revolve around whether inventions covering the video games’ mechanics constitute patentable subject matter because they have technical features (and not just an unpatentable set of rules developed to be executed by hardware including a console or computer); and in general, whether patents protecting video games are too broad so as to discourage technological progress in this field.
This chapter starts with a brief explanation of the influence of AI in gaming (Section 2). It then moves to sketch out the copyright law authorship and in-game creativity challenges (Section 3). Next, it turns to the several patent law conundrums in the field (Section 4). The final part (Section 4) concludes the discussion by arguing that while AI in gaming has been rather recently implemented, the fast pace with which this creative industry develops will certainly quickly transform the experience of video game players, but also the manner in which one understands (intellectual) property in-game.
