The European Union has the competence to generate different sort of legal acts. As a little reminder:
- The main rule at EU level is the Regulation. This law is automatically applicable in every Member State as soon as it is passed by the European Parliament. A present example of this kind of law is the recently passed General Data Protection Regulation (Regulation (UE) 2016/679).
- The next rule, hierarchically, is the Directive. Through this kind of act, the European Union provides Member States with some sort of “law skeleton”. Once the directive is passed, Member States shall adapt it to their own legal system. This is call transposition of the directive. In the area of copyright, there are two very interesting directives which will be the core of this article: directive 2001/29/CE and directive 2004/48/CE.
- Decisions, are specifically addressed to Member States, institutions, etc. for which they are mandatory applicable.
- Besides these three legal acts mentioned above, EU institution can provide non-binding Recommendations or Opinions about specific topics or areas.
European copyright law of video games
Returning to the subject of this post: how can we fit video games protection in EU legal system?, the European Commission website provides a good amount of resources, including a list of all copyright EU legislation. As in the previous post, this text will focus on spotting the legal sources applicable on the field of copyright regarding video games (leaving to next posts the development of what is provided in these laws).
The most important copyright rule at EU level is the Directive 2001/29/CE of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, also known as “InfoSoc Directive”.
Unlike the Berne Convention, the InfoSoc Directive does not list all works falling under its protection. Through its Whereas, the directive emphasised the protection provided to “authors or performers (…) to continue their creative and artistic work”; but omits which kind of works should be considered creative and artistic. The InfoSoc Directive leaves on the hands of Member States’ legislators to specify what is included as protected works when transposing the directive to the correspondent national law.
This confusion determining what are creative and artistic works is somehow limited by the scope of the directive. Regarding video games, article 1 specifically excludes computer programs:
“Article 1: Scope1. This Directive concerns the legal protection of copyright and related rights in the framework of the internal market, with particular emphasis on the information society.2. Except in the cases referred to in Article 11, this Directive shall leave intact and shall in no way affect existing Community provisions relating to:(a) the legal protection of computer programs;”
This situation is complemented by another European directive: Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs:
“Article 1 Object of protection1. In accordance with the provisions of this Directive, Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. For the purposes of this Directive, the term ‘computer programs’ shall include their preparatory design material.2. Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive”.
As we saw with international copyright law, it is necessary to combine more than one European directive in order to cover all elements constituting a video game. The very same Computer Programs Directive excludes in its Whereas 8 the use of aesthetics elements as an element to determine whether or not a computer program is an original work. This approach collides with the idea of a video game, that usually is created by a previous and not exclusive software (game engine) and finds its identity in its aesthetics elements.
The result of this desegregation is that the different element conforming a video game fall under an irregular protection. Some elements, as the code will be treated differently that, for example, its soundtrack.
– 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