Online Gaming is a growing industry in India and it is getting sturdier day by day as the technology is evolving rapidly throughout these years. As per the Forbes, the gaming industry in India is briskly growing and considered to be in top 5, with the worth over $890 million.[i] The considerate expansion of the gaming industry led us to analyse the role of legal and IPR protection in online gaming.
There are few platforms in India which allow users to play online gaming; facebook.com has also unleashed its new function of online gaming on its social networking platform. While some website provides free gaming options, there are others which allow players to put their money in the game. It is noteworthy here that betting and gambling fall under the State List[ii] and the power to make laws concerning the same are vested with the state legislature. However, all online games do not constitute gambling and hence in this article, we’ll analyse only those virtual games which have no relation to gambling.
The main notion of copyright is to protect any creative work, and video games or online games do come under the definition of creative work[iii] and hence copyrightable. The aim is to protect the economic right of the creator so that only he can make a legible copy, sell or distribute his virtual games.[iv]
- What all is protected?
The online game consists of many sub-details and hence every component of the game is copyrightable, be it the character in the game or the game codes. However, it is noteworthy here that only the content, storyline or the codes can be copyrighted and not the theme/concept as it is well-settled law that an idea cannot be copyrighted.[v]
- The character in a Game– If there is a character in a battle combat game which is roughly based on World War, that character can be copyrighted, one of the examples being the characters of the game Call of Duty. Furthermore, the most famous character in the gaming history i.e., Mario is copyrighted by Nintendo until the year 2080 which gives the right to Nintendo to restrict a game with Mario as a character.
- Protection of Sounds and Music– The music is considered to be the eternal part of the game and as a creative work, it is copyrightable. One of the examples being the game Prince of Persia which was released in 1989 by Jordan Mechner that came with a unique background sound, hence any illegitimate use of that sound will constitute an infringement of copyright. The Background sound of Mario bears universal popularity and if someone uses that sound without the permission or giving royalty, he/she can be prosecuted for the infringement of copyright.
- License– When a person buys a video game, he automatically accepts the terms and conditions which is stated in the license and any backup copies of the said game would be termed illegal. Hence it is advisable to read all the terms and license agreements before purchasing the online games because failure to comply the same could lead a legal action.
- Gaming Codes– An online game is technically a group of well-placed codes in a computer program. The game developers have a copyright over the said codes and also over the readable software which makes games accessible on different platforms.
- The Issue through the Court’s Lens
The Plaintiff is the company incorporated in the U.S. and a manufacturer of entertainment games and one of the popular games “Scrabble” approached Delhi High Court for issuance of an injunction against the Defendant for restraining the use of online game “Scrabulous” as it infringes the copyright and trademark of the Plaintiff.[vi]
Now the issue before the court was whether the name “Scrabble” can be copyrighted under the law? The Plaintiff contended that the game is an “artistic work” under the Copyright Act[vii] and the Defendant infringes its copyright by making a board game by the same rules and pattern. However, the Hon’ble Court rejected the reasoning by stating three factors:
- The original game lacks the standards of ‘originality’
- The Copyright Act is not applicable because;
- The ‘Doctrine of Merger’ applies in the given scenario.
Justice Bhat of Delhi High Court cited the judgment of the Canadian Supreme Court[viii] which was later approved in the EBC case[ix] and held that to claim a copyright, the work created should not be trivial. Further, the work needed to be creative and somewhere different in oddity; it should not only involve one’s knowledge but also some intellectual effort with a slight amount of creativity.
According to Section 15(2)[x], when a product is capable of being registered as a design but is not registered then the protection of copyright won’t apply to it. The reasoning being, where commercial use of a product is possible, the provided protection is shorter than the copyrighted product.[xi] Hence, the Defendant was justified for creating ‘Scrabulous’ however; the Court restrained the Defendants from using the name ‘Scrabulous’ as it has deceptive similarity which infringes the trademark of the Plaintiff.
An idea is the genesis of a product and by expressing the idea one creates a product however, copyright law only protects the expression of an idea and not the idea per se. The Doctrine of merger comes into force where the idea and the expression of an idea are intricately connected and in that case, the copyright act does not provide the protection. The absence of a large body of Indian cases led to the Court referring the American judgment[xii] which held that the copyright protection would not extend to games as such due to the doctrine of merger.
The Hon’ble Court applied the Doctrine of Merger in the present case as there was inseparability between the idea and the expression. The idea of playing ‘Scrabble’ was no different from the name itself and that landed the name in a public domain which cannot be copyrighted.
The Doctrine of Merger often applies to games and entertainment tools, whereas the Doctrine of Scenes a faire majorly applies to movies and books. The concept behind the doctrine of scenes a faire (scene to be made) is that certain creative work cannot be protected because they are customary in a particular genre. Where a particular idea is same but developed differently by using different modes, similarities are bound to be noticed but the court should always examine the fundamentals of the same. However, this doctrine does not bear legislative support in India but in the case of R.G. Anand v. M/s Delux Films & Ors.[xiii] The Apex court held that an idea, theme, plot or a subject matter cannot be copyrighted, which is necessary to bring out the balance between freedom of expression and IPR.
- Conclusion and Suggestions
The internet gaming thrives on consolidation of technology and creativity; the creators can monetize their ideas by underlining computer codes, which cultivates ideas into visuals and aural expressions. As discussed earlier, the attributes of an online game are copyrightable however it is still disputable whether video games can be classified as Cinematographic Work under the Copyright Act, 1957.
The law for online gaming is still unregulated in India as the gaming law is embryonic. However, a new obstacle has ascended involving contributions by online game players. The definitive legal affair concerning interactive online gaming has yet to address by the Courts. Nonetheless, it is prominent that a contribution made by a player in an online game can add a new dimension to the gaming world which needs definitive protection.
Also, by playing and streaming games online, few users are monetizing their work by uploading the video on YouTube. That decisive action would be termed as an infringement of developer’s copyright. However, some developers like Minecraft have given explicit permission to use the name and logo for free which is causing infringement delinquency in the other dome of online gaming. Although the legal framework provided is not sufficient to tackle copyright infringement, the Copyright Act is proving to be efficacious in protecting the business interest of the game developers and promoters. Besides, the online gaming industry is growing hastily which bestows the duty on the legislature to make stringent laws governing the same.
[i] Available at: https://www.forbes.com/sites/suparnadutt/2018/03/09/how-online-gaming-in-india-is-growing-fast-into-a-billion-dollar-market/#648dc80055b6.
[ii] Entry 34, List II, 7th Schedule, The Constitution of India, 1950.
[iii] Section 2(f), The Copyright Act, 1957.
[iv] Section 14, The Copyright Act, 1957.
[v] Donoghue v. Allied Newspapers, Ltd. (1937) 3 Ch. D. 503.
[vi] Mattel Inc. v. Jayant Agarwalla, IA No. 2532/2008 in CS (OS) 344/2008.
[vii] Section 2(c), The Copyright Act, 1957.
[viii] CCH v. Law Society [236 D.L.R. (4th) 395].
[ix] Eastern Book Company & Ors. v. D.B. Modak & Ors. (2008) 1 SCC 1.
[x] Section 15(2), The Copyright Act, 1957.
[xi] Microfibres v. Girdhar, 2006 (32) PTC 157 (Del).
[xii] Atari v. North American Philips (672 F.2d 607).
[xiii] R.G. Anand v. M/s Delux Films & Ors 1978 AIR 1613.
Image credits: Kaspersky
This article is written by Himanshu Tyagi of Symbiosis Law School, Pune.
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