The Legal Nature of Video Games

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In the course of this study, we tried to analyze different approaches adopted by few countries in the field of legal protection for video games, their creators and consumers ‘ rights. We note that the majority of jurisdictions tend to protect these works of art as software, on the side of a legislative (and sometimes doctrinal) void; this is the case because the underlying computer program is virtually the only ordinary element of each videogame. Given the latest technological developments in this sector, however, it is important to emphasize that different video games often share analogous source codes or the ‘game engine’ during its development through a software. The legal nature of video games must be considered while analysing this element. Answers to questions of legal protection may vary from those of 20 years ago. Clearly, in the coming years as the industry is developing, solutions for the legal protection of video games may continue to vary.

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It is of the opinion of scholars that video games are complicated creations, consisting of several copyright works (e.g. literary work, graphics, sound, characters and software) that are capable of being protected by the law independently. Though the majority of the population believes that software is the dominance of video games, it is also believed that not only the underlying software, but also the various audio visual and literary elements created for each video game will form a distinctive element of one video game from another. Performances by actors and musicians may also be included. It is also recognized, at the same time, that some video games do not distinguish themselves with their audiovisual elements and that we need to seek protection by means of their software. Thus, neither the software nor the audiovisual element would necessarily prevail; it seems that there is the distributive approach, provided that both elements are made of a video game.

At the international level, although software and audiovisual references are provided in the TRIPS and the WIPO Copyright Agreements (‘WCT’), there are few specific guidelines in multilateral treaties concerning the safety and protection of video games. The world-wide community can take into account the opportunity to discuss and analyze this subject, given the complexity and economic relevance of video games. The authors of this study envisage a special regime to protect video games as a whole in the same way as many countries do for audiovisual work.

It is extremely difficult to draw precise legislative recommendations; however, in the context of an international debate on video game protection, the following elements could be taken into account:

1. The establishment of a special regime or sui generis legal protection for video games should be taken into account as part of an international legal framework, whether binding or not.

2. 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 their rights that is to be protected.

3. As for other subjects involved in virtual currency or in-game currency, gambling etc. considering the complexity of these works, it is not feasible to determine these subjects from developers’ perspective but rather domestic las should be developed with a view to protect the consumer and make sure there is no unfair market practices.

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.

In the context of cinematographic works, Article 14bis of the Berne Convention provides for a special regimen of ownership of copyright allowing some jurisdictions to specify video games to be considered as a cinematographic work. However, it 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.

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