This post aspires to be the first of a series about my two great passions: Law and video games. Personally, my purpose writing is, on the one hand, to collaborate on the debate about the legal classification of video games at international, European and national (Spain, France and the U.S.) level, and on the other hand to deepen my own knowledge on the field. Goal is to publish every post in both Spanish and English. I will try to follow a structured order publishing the next posts. I will begin with copyright law of video games for being this, in my opinion, the hottest legal issue around video games. Afterwards, I plan to reach several other topics such as patent and brands, data protection, contracts and other legal issues specific to video games like abandonware, cosplay and eSports.Comments, correctios, critics are, of course, more than welcome.
International Copyright law of video games
First of all, as this is a translation of my original post in Spanish, I think is very interesting to remark the differences between “intellectual property” and its literal translation to Spanish “propiedad intelectual“. Meanwhile in English intellectual property comprises patent, trademark and copyright law, “propiedad intelectual “corresponds only to copyright law. The full concept of intellectual property exists in the whole formed by “propiedad intelectual” and “propiedad industrial“. As my research has been in both English and Spanish I found quite interesting this difference of wording.
This series starts focusing on copyright because this is, from a lawyer point of view, the key legal tool for developers and publishers to protect their video games against third parties. Through copyright law, creator and owners can protect their works. The purpose of this protection is to boost the creation of new video games, giving the creator security that nobody will replicate their works and jeopardize the potential reward for the job done.
When deepening in video game’s copyright law we face that the term “video game” is not specifically included in any list or definition of protected works. This means we need to find its legal classification. In order to do this, it is necessary to analyse carefully the diverse scopes of application. Today, according to different experts, there are three possible legal classification systems of video games in the different copyright laws:
- Video games considered as audio-visual works;
- Video games considered as computer programs;
- Consideration of all the different elements that together constitute a video game, designs, artworks, storyline, script, music, etc.
This three approaches are unequally spread around the world. Following how specific domestic copyright law is, the issue to deal with, or the national jurisprudence, one system of classification will prevail over the others in each country.
In the scope of (copyright) international law, most important regulation is Bern Convention (1886, last amended in 1979). In Article 2 of the Convention we find a list of protected works. This list does not mention specifically video games.
“Article 2, Protected Works:
The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science”.
In the case of the Berne Convention we spot several elements that are familiar to the concept of video games:
- Books and other writings reflecting a script or ideas of the games, or pamphlets or artbooks often included with the video games or their collector editions.
- Musical compositions are an essential element of every video games, sometimes becoming even more popular that the game itself.
- Cinematographic works included as cinematics within the game or externally, as trailers, TV spots, etc.
- Works of drawing are part of the process of development of any video game. A good current example is Cuphead, hand-drawn and with an independent development, is today one of the most popular and beautiful games of the year.
Nevertheless, the whole that is shaped by these elements, all included in every video game, still misses a unique feature. It will be the WIPO (World Intellectual Property Organization) who through its WIPO Copyright Treaty (this treaty (1996) adopts and adapts Berne Convention to the body of laws of the organization) includes computers programs as protected works listed in Article 2 of the Convention.
Article 4, Computer Programs:
“Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression”.
With all these elements combined by two international regulations we can already complete the puzzle that represents a video game. They provide developers and publishers with the necessary tools to protects their works against third parties. In this series of posts about video game’s copyright we will analyse these tools in the post corresponding national copyright law of video games (national law will include dispositions provided by international and European law).
– La Protección Jurídica de los Derechos de Autor de los creadores de videojuegos – “statu quo perspectivas y desafíos”; Francisco Javier Donaire Villa, Antonio José Planells de la Maza; Fundación Arte y Derecho