Over the span of the last four decades, the realm of video games has witnessed rapid expansion and remarkable progress.
In 2019, the global video games market reached a valuation of $151 billion, with expectations predicting a value surpassing $250 billion by 2025.
During this time, computer games have also undergone significant technical evolution. From the simplicity of early 1980s arcade games like Pacman and Space Invaders, we’ve advanced to the sophisticated offerings of today’s industry.
These modern games offer near-realistic simulations of intricate environments and cutting-edge graphics that verge on full-fledged virtual reality.
Furthermore, contemporary video games are notably intricate, brimming with hours of gameplay, myriad sound effects, and extensive dialogues.
Consequently, it’s not surprising that blockbuster game budgets now rival those of major motion pictures. Another fascinating trend is the expansion of video games to new hardware platforms.
While computers and gaming consoles were once the mainstream, today’s games also target mobile devices and handheld systems such as the Nintendo Switch.
What remains unchanged over these four decades is the essential interplay of creativity and technology that underpins every computer game.
It’s crucial to recognize that the gaming industry is, at its core, a creative field where ideas seamlessly merge with technology.
At its fundamental level, a video game remains a computer program, where lines of software code bring creative concepts to life.
This code transforms imaginative ideas into intricate audio-visual expressions, orchestrating the engagement between the player and the game.
In this intricate realm of creativity and high-tech innovation, intellectual property (IP) assumes a pivotal role in generating and sustaining value.
Consequently, IP stands as a strategic cornerstone in every computer game, influencing the operations of game developers, publishers, and distributors alike. IP encompasses intangible assets such as source code, inventions, brands, and artistic creations.
It’s of paramount importance for all participants in the video game ecosystem, both during development and commercialization, to establish a well-balanced IP strategy, with a strong emphasis on securing, preserving, and leveraging the various IP rights inherent in a computer game.
Different jurisdictions adopt varying approaches in classifying video games for IP protection.
Some countries view a game as a composition of distinct elements, with each component meriting individual IP protection based on its unique attributes.
Others consider a video game as a computer program with a graphical user interface.
There are also countries, like the Republic of Korea, that safeguard computer games as audiovisual works.
A video game is a fusion of multiple elements, which can be categorized into four primary groups:
- Computer Code: This forms the core foundation of a video game. The source code is often a closely guarded trade secret of software vendors. The source code directs various elements like audio and visual aspects. In the EU, source code, object code, and preparatory design materials receive copyright protection.
- Audio Elements: These encompass a diverse array of components, including music scores, sound effects for realism, and character voices. These elements are protected under copyright.
- Visual Elements: The visual aspects significantly shape the player’s experience and interaction with the game. These include images, animations, illustrations, maps, and more. They’re protected through artistic copyright and, in some cases, design rights.
- Gameplay Elements: The gameplay is the manner in which the player engages with the game. While the concepts underlying gameplay aren’t copyrightable, specific expressions can be protected. Additionally, patent protection might be applicable if the gameplay interacts with hardware to produce technical effects.
Computer code serves as the foundational backbone within a computer game. Typically held as one of a software vendor’s most closely guarded trade secrets, the source code of a computer program wields significant influence.
As the orchestrator of various components in a video game, including audio and visual elements, its protection falls under the copyright umbrella within the EU’s legal framework.
This holds especially true for source code, composed in a human-readable programming language, akin to literary works.
On the other hand, object code, compiled from source code, can also be reverse-engineered back into its source form.
The EU Software Directive (Directive 2009/24/EC) extends copyright protection to preparatory design materials, encompassing works that can eventually result in a computer program.
Both source code and object code can be categorized as literal expressions of the computer program underlying a video game.
Beyond these literal expressions, a computer program encompasses non-literal elements such as its overall structure, sequence, and organization.
This structural layout typically outlines the arrangement of separate modules, their hierarchy, and internal interactions.
These non-literal aspects, forming the backbone of a computer program in a video game, are also eligible for copyright protection.
Unauthorized replication of these elements by a competing entity during their own product development could result in copyright infringement claims.
It’s worth noting that in contemporary games, the foundational source code of a video game is seldom built from scratch. Instead, modern blockbuster games often rely on middleware, a software framework developed by third parties.
Known as “game engines,” these middleware solutions provide a flexible software platform with essential core functionalities for new game development.
Examples include the Frostbite engine (used in Battlefield, FIFA, Need for Speed), Unreal engine (utilized in Fortnite, Deus Ex, Borderlands), and Unity engine (employed in new mobile versions of League of Legends, NASCAR Heat, Rust).
In such cases, the distinctive essence of a computer game typically arises from original audio-visual components layered onto these engines, along with customizations to the source code.
Consequently, video games sharing a common engine will inherently share certain portions of their source code.
Aside from copyright protection, the code within computer games could potentially attract patent protection.
While patents are granted for technical solutions to technical problems, computer games, characterized as sets of rules, methods, and gameplay schemes, inherently possess an abstract, mental nature. This abstract nature precludes direct patentability.
However, if these rules or methods interact with computer hardware to generate technical effects, patent protection becomes plausible.
Thus, while software itself isn’t patentable, software-related inventions involving specific code-hardware interactions leading to technical outcomes could be eligible.
Meeting criteria such as industrial applicability, novelty, and inventive step is essential for such patent protection.
Although relatively uncommon due to stringent requirements, certain inventive gameplay elements representing technical advancements and producing tangible technical effects can indeed be patented.
In conclusion, the video game industry’s growth has been accompanied by a complex landscape of intellectual property considerations.
From the intricate interplay of code and creativity to safeguarding visual, audio, and gameplay elements, Intellectual Propery is pivotal in shaping the industry’s future.
As technology evolves and the boundary between virtual and reality blurs, effectively managing and leveraging intellectual property remains a cornerstone for success in the dynamic world of video games.
