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The video gaming business is quickly becoming one of India’s most important and competitive industries. The decrease in interest rates in the twentieth century, as well as the ease of access and affordability, high-definition graphics, and advanced techniques of playing games, have enchanted users and functioned as a catalyst for the gaming industry’s growth. According to Forbes, India’s gaming sector is worth $1.1 billion, making it one of the top five countries in the world. ‘
Given the great economic importance and growth of the video game industry, it is imperative that the companies’ goodwill and reputation be protected. Due to a lack of jurisprudence on the subject, Indian rules in this area are still in the early stages of development, and there are no specific regulations or norms governing video game protection. Because video games are a complicated aggregation of several separate aspects, recent legislation granting video game protection under a single definition of law is challenged. Furthermore, given the rapid expansion of the subject matter’s legal concerns, India’s Intellectual Property Laws (hereafter IP Laws) are extremely proactive and capable of providing reasonable protection to a few parts of video games subject to their originality, novelty, and applicability.
On a larger scale, government authorities in various developed and developing countries raised similar concerns about the need to enact standard set regulations governing video games, prompting WIPO to become involved in the matter and produce an analytical research study titled “The Legal Status of Video Games: Comparative Analysis in National Approaches,” which examined the current state of the law globally. This paper will primarily focus on the protection of video games under Indian law as well as the legal approaches of other countries to video games.
A SUMMARY OF VIDEO GAMES
In layman’s terms, a video game is defined as “a game played by electronically manipulating graphics created by a computer program on a monitor or other display” according to the Oxford dictionary. However, it is difficult to define the term “Video Game,” but some researchers have come up with a hazy but satisfactory definition: “Video games are complex works of authorship containing multiple art forms, such as music, scripts, plots, video, paintings, and characters, that involve human interaction while being executed with a computer program on specific hardware.” As a result, video games are not created as single, simple works, but as an amalgamation of distinct aspects that can each be copyrighted if they achieve a specific level of originality and inventiveness (i.e., the characters in a given video game, its soundtrack, settings, audiovisual parts, etc.). In simple terms, a video game is a complicated composition of various variables (music, visuals, hardware, software, codes, and characters) that form a superstructure.
As a result, creating a video game as a single entity is difficult. A wide range of genres can be found in this field. The constitutional aspects will differ depending on the game type, or to be more precise, with the specific game. Despite this, the computer program is the most stereotypical of all the units.
A video game is the result of a lot of hard work in terms of computer programming, source code development, visible artistic labor, and detailed graphical design, to name a few things, all of which can be protected in one way or another.
The following are two essential elements of any current video game.
1. Audio-visuals – characters and plots (visual), dialogues and music (audio);
2. Computer software – the factor that drives the audio-visuals and allows users to interact with and manage the game’s parts.
IP LAWS PROTECTION IN INDIA
In India, there is currently no explicit legal system in place to protect video games. The expansion of the industry has raised various worries, most notably over the protection of video game artists’ and publishers’ intellectual property rights. Although Indian IP laws are unable of providing holistic (single-unit) protection to video games, they are capable of protecting separate aspects of video games under several IP laws, with the Copyrights Law playing a critical role.
The Indian copyright law, like the Indian IP laws, is still in its infancy. Due to a lack of jurisprudence in this area of law, applying Indian IP Laws to video games is the most difficult task facing the legal community. The Video Game cannot be expressly protected by the Copyright Act of 1957 as a single item (hereinafter The Act). However, because a video game is an aggregation of distinct components, a succinct reading of the Act may allow for legal protection of specific elements (such as artwork, sound, and texts) under several headings U/s 14 of the Act.
Let us attempt to express the practical application of the aforementioned argument in the clearest manner feasible. Consider the well-known game “Grand Theft Auto V,” which can benefit from copyright protection under Section 14 of the Act. To begin with, the gameplay (the plot or the manner it is played) can be protected as a literary work under Section 14(a) of the Act. Furthermore, the players in the game, such as Trevor, Michael, and Frank, maybe copyrighted as artistic works under Section 14(c) of the Act, in addition to merchandising rights. Furthermore, sound effects (soundtracks such as theme tunes) encoded in games may be protected as musical works and sound recordings under Sections 14(a) and 14(e). Furthermore, under Section 14(d) of the Act, pre-recorded visual scenes (cinematograph scenes) to show-casting progression in the tale can be safeguarded.
As stated in the case of NRI Film Production Associates (P) Ltd. v. Twentieth Century Fox Films Corporation & Anr, the learned court believed that while fundamentally essential aspects could not be protected and no holistic protection was available, video games could be afforded reasonable and practical protection.
Furthermore, a discussion erupted about whether video games may be included in the purview of Section 2(f) of the Act, which protects visual recordings because video games are representations of audio-video recordings that are controlled by the game’s users. The characters in the games control the activities that have already been installed/recorded by hitting various combinations of buttons on the controller. As a result, video games may fall under the category of cinematographic films, based on judicial interpretation of the Act.
The trademark is the most valuable asset and thus the most visible type of IP protection in the video game industry; the same logic applies. Users are more likely to recognize games by their marks or taglines, such as GTA, EA Games, and so on. Trademarks protect the game’s reputation and visibility as a market brand. Some components of the game, such as the name of the game, taglines, logos, or any other aspect approximating the game in the market, must be registered under Section 28 of the Trademark Act, 1999, which grants trademark holders exclusive rights to exploit the use of marks. In the instance of violation of one’s exclusive rights, one can seek relief in the form of an injunction, damages, or accounts of profits under Section 29 of the Trademark Act, 1999. As a result, if a third party created or attempted to free-ride with the unauthorized use of a video game’s registered trademark, or tried to deceive innocent users by creating a similar trademark, he can be held liable for the breach, thereby protecting the video game’s brand, goodwill, and prominence.
PROTECTION OF PATENT
The law of patents protects the invention from being copied. Under patent law, the term “invention” has a broader definition: it might be a process, the machine, or other ornamentation, as long as it is novel. A video game is made up of different parts that fall under the category of “operational methods and principles of program” and can be categorized as user interface, gaming programs, visuals, and so on. While copyright can be granted to the expression of computer code methods, copyright cannot be granted to the “Operational methods and principles of program.”
It would be nonsensical to claim that copyright is incapable of protecting the functional and operational aspects of the software. This is where the patent law comes to the rescue, as patenting protects the scope (operational techniques) of the invention rather than the theoretical component (how it is developed). Patents will be an excellent way to safeguard the operational aspects of video games. Proviso software is more than just an algorithm; it’s a technical advancement.
According to Section 3(k) of the Patent Act of 197014, it is necessary to demonstrate that hardware is of equal importance to software, and that software must be attached to the invention as a component in order to be patentable. In the case of a video game, the software is linked to the hardware, which includes the console and controller, both of which are equally important aspects in the video. As a result, gaming software might be granted patent protection in India.
Furthermore, the Patent Act of 1970, Section 2(Ja), preserves patents for creative steps toward technical improvement with economic benefits. Video game techniques can be patented if they follow the guidelines outlined above. The strategies employed by programmers to keep users excited and engaged in the game’s plot are the essence of any game. The procedures or methods are well-developed programmes, not just concepts. In comparison to the techniques of methods used in the 1990’s games such as Mario, Pinball, and so on, modern games are highly involved in technical advancement, with gaming programmers developing various new aspects of playing the games to engage the users in the game, while also benefiting the economic significance of the market through high sales.
PATENT DESIGN PROTECTION
The Design Act of 2000 defines “design” for a product as “the presentation of the completed product as a function of the product’s visible qualities (visual characteristics), which in this case may include numerous features such as shape, configuration, pattern, hues, and composition.” As a result, it can be argued that the product and design are deemed inseparable under the Design Act. The Design Act of 2000 controls the registration of industrial designs in India. The industrial design license is valid for 15 years from the date of registration, and it must be renewed for the first time in 10 years, and then every fifth year after that.
The virtual designs encoded in games by the developer are not covered by the Design Act, 2000, because section 2(d) of the Design Act, 2000, clearly states that protection will be awarded to designs that have gone through an industrial process. Video game designs, on the other hand, are the result of technological interference, but the layouts of video game consoles, controllers, or accessories fall within the scope of Section 2(d) of the Design Act, 2000, which defines the term “design,” as long as all of the elements are met: a. gaming accessories are a by-product of an industrial process, b. the accessories are in tangible form and can be manufactured and sold separately, c. the design in video games appeals to the public.
After researching the market and the mindsets of the users (mainly youth), game developers have become more aggressive and violent in their graphics advancements in the gaming industry. In a report released by Journal of India Pediatrics, study suggests that teenagers are more inclined towards the aggressive and violent visual games, whilst about 2 percent of the population were fascinated by the educational games. There is no explicit rule, statute, or court interpretation putting limitation barriers on video game material, but there are a few scattered laws like follows:
1. Article 19 (2) of the Indian Constitution, which states that freedom of speech and expression is subject to limitations that protect decency and morality.
2. Articles 39 (e) and (f) of the Indian Constitution, which declare that the state must take preventive measures against activities that abuse or corrupt the minds of innocent children.
3. Section 5(B) (I) of the Cinematograph Act, 1952, which requires the censor Board of the picture to issue guidelines and has the authority to deny the publishing or telecast if the application does not follow the rules.
VIDEO GAME DEBATE – AROUND THE WORLD
As previously stated in the article, modern video games are made up of two main components. a. Audio-visuals – characters and plots (visual), dialogues and music (audio); b. Computer software – the factor that drives the audio-visuals and allows users to interact with and control game elements. The application of legal laws and the classification of video games as multimedia works, IT programmes, or audio-visual works were brought to the attention of the entire world. After receiving strong pressure from a variety of government bodies around the world, WIPO became involved in the matter and published an analytical research study titled “The Legal Status of Video Games: Comparative Analysis in National Approaches” (the “Study”), authored by Messrs. Andy Ramos, Anxo Rodriguez, Tim Meng, Stan Abrams, and Ms Laura Lopez. The team analysed and examined the legislation and laws made in the jurisdictions of twenty-two different nations, including China, Germany, India, Russia, the United States of America, and others, in order to safeguard and promote the video game industry in their respective countries. According to the survey, these countries are divided into two groups. The first group believes that video games are superior to computer programmes because they rely on software and lack originality in their work; on the other hand, the second group believes that video games are primarily audio-visual works that contain a variety of artistic and original elements that can be protected in one form or another. Finally, a small number of countries, such as Kenya and the Republic of Korea, began to embrace dual protection for video games, arguing that while the audio-visual aspect is important, the software used should not be left unprotected. Furthermore, the modern video game industry may employ a greater number of experts in complicated writing activities. The protection of video games has appeared to be difficult over the world due to a complex combination of many elements.
Also read: SEAT OF ARBITRATION
Copyrightability of PCC in Gaming Context
First and foremost, we must determine what kind of material people can create within a game. PCC is derived from the terms UGC and UCC. Despite the lack of a universal definition, a UGC is generally defined by I the Internet’s public availability or availability to a select group of people, (ii) a certain amount of creative effort rather than mere reproduction or pre-existing works, and (iii) the availability of the Internet to a select group of people outside of professional routines and practises, amateur invention. UGC is defined as “material made publicly available over the Internet that demonstrates a certain amount of creative effort and is developed outside of professional routines and procedures,” according to an OECD study.
A scripted setting and an unscripted environment are the two types of gameplay environments. A player in a scripted environment has little or no freedom to construct items on his own, and the only things he can make are closed avatars with traits and abilities specified completely by the developer. Players in an unscripted world, on the other hand, are free to roam and do as they choose. They can script or write their own code, or they can operate an open avatar that is defined by their choices in terms of body, personality, and ability. PCC refers to material created by a player in an unscripted environment, including but not limited to photographs, videos, audios, texts, Mods, and machinima, for the sake of this study.
As a result, PCC can be classified into four groups. The first are ‘fan creations,’ such as artwork, stories, costumes, fan websites, and walkthroughs, that are not directly included into the gameplay experience. These types of fanworks have copyright issues that are nearly identical to those of fanworks based on other popular media. The second category comprises traditional art forms such as music, poems, and paintings that are made outside of the framework of gaming but are later incorporated into it in some way. A player might, for example, develop a song and then perform it during a multi-player game session. The player would clearly own the copyright to the song in this situation, at least at first. The third sort of PCC is created and displayed immediately during the gameplay process, rather than using software or an audiovisual screen. This type is more common because modern games are more open and interactive, allowing gamers to fully manipulate the contents of the multimedia work according to their own imagination, transforming the works contained in the multimedia product to the point where they are original enough to qualify as new works. The fourth form of PCC is reliant on the original game, either by modifying, adding, or enhancing the program engines or original codes to produce new game extensions known as ‘Game Mods,’ or by leveraging a game’s graphic assets to make Machinima, which combines VG animation and cinematography. Because the third and fourth types of PCC are particularly prevalent in the gaming setting, the thesis will focus on the legal difficulties that arise with these two types of PCC.
Indian Intellectual Property Rights are in their infancy, as a result of which there are various pages left unturned by jurists and legal scholars when it comes to the arena of intellectual property and its protections. Such unturned pages are coined as either lacunas or grey areas (aspects that are yet to be discovered). Unfortunately, Video games and their protection has been the victim of such grey area of intellectual property. The Indian IP Laws are incompetent to bestow holistic (single-unit) protection to Video games, which has left this rapidly emerging industry and its charioteers in agonizing.
After a conscious and objective analysis of the above research, it is comprehensible that the existing law in India, as well as worldwide, is rigid and insufficient to encompass such as complex amalgamation. It would not be wrong to state that, the IP law enacted in India are in the same developing stage, which considering the time should be revisited. It needs time for an amendment to make pre-existing laws more flexible and open for a broader interpretation, the current law is rigid because of the use of words and definitions construed in the initial stages by the old-school lawmakers, the lawmaker of the new legislation should Considering the IP laws in India, the videos games can be granted reasonable protection to keep the industry running until a new and apt set of rules are passed legislation. The absence of a specific law for the regulation of such a rapidly emerging sector comes with opportunities for malpractice and lack of protection to the developers and the country’s economic development and stability.
 Mr. Andy Ramos, Ms. Laura Lopez, Mr. Anxo Rodriguez, Mr. Tim Meng and Mr. Stan Abrams, The Legal Status of Video Games: Comparative Analysis in National Approaches (Feb 12, 2022), https://www.wipoint/export/sites/www/copyright/en/activities/pdf/connparative analysis on video games.pdf
 Mr. Andy Ramos, Ms. Laura Lopez, Mr. Anxo Rodriguez, Mr. Tim Meng and Mr. Stan Abrams Supra Note 1
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 The Copyright Act, 1957 § 14, No. 14, Acts of Parliament, 1957 (India).
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 The Trademark Act, 1999 § 28, No. 47, Acts of Parliament, 1999 (India).
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 V T Thomas v. Malayala Manorama, MANU/KE/0011/198
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 Varun Munjal, India: Gaming Laws In India: A Toothless Regime, MONDAQ (Feb 9, 2022), https://www.mondaq.com/india/gaming/594124/gaming-laws-in-india-a-toothless-regime.
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 INDIA CONST. art 19, § 2.
 INDIA CONST. art 39, § e, f.
 The Cinematograph Act, 1952 § 5 (b) (i), No. 37, Acts of Parliament, 1952 (India).
 The Information Technology Act, 2000 § 67, No. 21, Acts of Parliament, 2000 (India).
 Mr. Andy Ramos, Ms. Laura Lopez, Mr. Anxo Rodriguez, Mr. Tim Meng and Mr. Stan Abrams, The Legal Status of Video Games: Comparative Analysis in National Approaches (Feb, 6, 2022), https://www.wipoint/export/sites/www/copyright/en/activities/pdf/connparative analysis on video games.pdf
 Graham Vickery and Sacha Wunsch-Vincent, Participative Web and User-Created Content: Web 2.0, Wikis and Social Networking 18 (2007).
 Tyler T. Ochoa, Who Owns an Avatar? Copyright, Creativity, and Virtual Worlds, 14 Vand. J. Ent. & Tech. L. 959 (2012) (hereinafter ‘Tyler Ochoa’); MAI System Corpn. v. Peak Computer Inc., 991 F 2d 511 (9th Cir 1993).
 Kim Barker, MMORPGing – The Legalities of Game Play, 3 (1) Eur. J. for L. & Tech. 3 (2012) (hereinafter ‘Kim Barker’).
 Daniel Kromand, Avatar Categorization, 4 Transactions Digital Games Res. Ass’n. 400 (2007).
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Author: Abhishek Bhardwaj, Amity Law School, Noida
Editor: Kanishka Vaish, Senior Editor, LexLife India