Next level: about video games and intellectual property

by | Feb 24, 2021 | Articles, Counterfeiting

While the gaming industry was already booming, the pandemic caused by coronavirus caused the numbers to reach historic highs. Suddenly, the world finds itself forced to stay at home with newly found time to play the games that, in turn, have become a window to alternate worlds, away from the disruptive reality that we are living.

While the entertainment industry suffered a severe blow with the closure of event houses and recording studios resulting from social isolation measures, the gaming market continues to grow steadily.

Figures published by consulting firm Newzoo indicate that the video games market is expected to end 2020 with revenue of around $159 billion. In addition, the number of players is constantly growing, and could reach the level of three billion gamers in 2023 [1].

Brazil follows this global growth trend. According to the seventh edition of The Pesquisa Game Brasil (PGB), more than 70% of Brazilians play some type of game, the vast majority on mobile devices, due to greater ease of access [2]. The country already ranks fourth in the global player number rankings, behind only more populous countries such as the United States, China and India[3].”

Intellectual property
In this thriving and enriched market of innovation, the search for better protection of creative assets is no longer a choice, but a necessity. And it will be in intellectual property that companies in the video game industry will find a wide range of ways to protect their businesses.

Intellectual property is the branch of law that confers legal protection on the creations of the human spirit, of a scientific or artistic nature. Intellectual property guarantees the creator the right of exclusivity in the use of its creation. Therefore, any use by third parties will depend on the authorization of the rightsholder of the creation. It is a way of encouraging the author to create, since they will be sure that only he or she, or others authorized by them, will be able to enjoy the economic exploitation of creation.

Within intellectual property, there are several subdivisions in more specific areas, which can be harmonized to confer global protection to the work resulting from the creation of an individual or group of individuals.

Taking the universe of video games as an example, Brazilian legislation determines that the graphical interface of the game, scenarios, characters (including their visual and psychological aspects), the soundtrack, the plot, the texts, and dialogues will be protected by copyright. The source code of the game will also be protected by copyright, in the condition of literary work.

In turn, the name of the game, given its use as an identifying sign of a product, can be registered as a trademark, a protection modality that also may include names of characters or places mentioned in the game, in addition to other aspects that perform brand function.

If the game brings hardware solutions such as improvements in controls and consoles, devices for motion detection and connection between users, it is also possible to require the protection of the technological solution through a patent. As mentioned above, the game software itself is protected through copyright, but the set of a physical medium tied to a computer program may be a so-called “patentable” invention.

Gameplay-enabled accessories, such as consoles, controls, and handheld devices, can be protected by industrial design if they have a new, original design. It is important to highlight that industrial designs comprise only the ornamental form of the product, excluding the functionalities, types of materials and practical advantages of the design.

Each form of protection has particularities regarding the requirements for obtaining registration, as to the duration of the right of exclusivity, and even as to the institution where protection is sought. Above all, these differences still vary according to the legislation of each country, although the matter is relatively uniform globally, thanks to the signing of international treaties.

Regarding copyright, for example, the law does not require registration for the work to receive legal title — it is sufficient that it has been fixed in a tangible environment for it to be protected. Still, registration is advisable to facilitate proof of authorship and creation date.

While, some assets can have perpetual protection, such as trademarks, other forms of protection under the scope of intellectual property have a limited protection term — this is the case of copyright, patents, industrial designs, and computer programs. Thus, after a certain period, authorial protection over a character in a game or over its fictional universe will expire, and such creations will be considered as “public domain”, allowing third parties to use the copyrighted elements of the game freely, without prior authorization.

The public domain will still take time to become a reality in the gaming universe. This is because video games are relatively recent inventions in history. Pong, the first video game, was released for the Atari console in the 1970s —and the protection deadlines, especially for copyright, are wide. As an audiovisual work protected by copyright, games have a protection period of 70 years, counted from the 1st of January following the date of first disclosure of the game.

The duration of the protection of the computer program follows similar logic, being 50 years, counted from the 1st of January following the date of its first publication, or, in the absence of this, the year the software’s creation.

Contracts and licensing
However, it is not enough to merely focus on the registration of intellectual property assets. Particularly, in the gaming industry, contracts with employees, suppliers, contractors, and other actors in the production chain must be well structured so that there are no gaps that impair the unimpeded exploitation of the game.

As an example, it is worth noting that contracts should be signed with the designers of scenarios, characters, and other developers of the visual aspects of the game, ensuring the transfer of copyright on such works of professionals and employees to the contracting company, which will come to explore the game commercially.

We should be especially concerned with the drafting of contracts dealing with intellectual property rights in games, to avoid questions regarding the ownership of such rights, in addition to giving the contractor assurance that the works created are original.

Another advantage of adequate protection of the intellectual property aspects related to electronic games is the possibility of monetization of the product beyond the digital universe, through licenses for the development of products derived from the game, such as clothing, dolls, and decoration items. In this sense, it is also worth noting the need for transfer of rights contracts that adequately reflect the particularities of each case.

Piracy considerations
The guarantee of intellectual rights over games is also important to combat the entertainment industry’s number one enemy — piracy. The proper and strategic protection of the portfolio of creative assets allows holders to combat unauthorized uses by third parties more efficiently with local authorities and in the judicial sphere.

In a competitive scenario such as the current gaming industry, the protection of creative assets through intellectual property should be put as a priority in the business. There is little use in investing in innovation if the result of this effort is not adequately protected, from a legal and contractual perspective, to ensure the economic return for all the effort in research and development.

The actors in the segment who have this awareness and make good use of the legal instruments to ensure their rights will certainly come out ahead!


Article published in ConJur.

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