The term ‘Intellectual Property’ or IP has gained tremendous importance in modern times. Judiciary systems are becoming increasingly concerned about criminal as well as civil laws pertaining to intellectual property. The scope of such laws would extend to a wide spectrum and could have a deep impact on economies and individual industries. One such industry to be impacted is the gaming industry, particularly video games and virtual worlds.
The gaming industry has witnessed fast paced evolution in the past two decades. Video games today are played through gaming consoles as well as on PCs and mobile handheld devices including cell phones. This technological evolution has turned the video game industry into a global money-making machine. In 2008, the sales of video games accounted for over $21.3 billion, while it had witnessed a 43 percent growth to $17 billion from 2006 to 2007 alone.
Because of this, what was once considered a teenager-oriented fad at first has gained a large percentage of adult users in the last 20 years. Considering the numbers involved and the fast paced growth of its user base, the gaming industry has massive profit making potential. Games are now being used for purposes other than just entertainment, including medical treatment, military training, commerce as well as legal advisory (Fairfield).
The creators of video games are generally known to be extremely protective about their IP rights, particularly the software or source code. However, when a game developer wants to tie up with a video game company for the mass production and supply of the product, the company, quite obviously, wishes to protect its own interest and have full ownership and control over the game. Despite both these parties wanting to preserve their intellectual property rights, growth in infringement and theft has led to raging public debates on how far can laws be used in order to regulate a creative field.
The virtual world is another facet of the gaming industry that has become immensely popular among users. Gartner predicts that, by 2012, 80 percent of those who are actively using the internet will be members of at least one virtual world (Virtual World News). A virtual world is distinct from a video game with respect to the following characteristics:
- First, they are simulated 3D environments designed to represent a real or imaginary place.
- Second, users exist in these worlds in the form of distinct ‘avatars’ that are also 3D.
- Third, people can interact with other users through their avatars through text chat or voice chat.
- Fourth, the virtual world may require the user to fulfil pre-set objectives although some worlds do not require the user to fulfil a goal.
While most virtual worlds require users to pay registration fees, users can also have stakes in the game. They are known to invest, on an average, 20 hours a week to gaming and can develop a strong emotional bond with their online personas. At the same time, the creators and operators of such games make huge investments in time and money to design, test, implement, operate and support the running of online games and worlds, the cost often running into tens of millions of dollars. This investment from both, the users as well as the creators, often gives rise to a conflict of interest that needs agreements and contracts governed by law to be resolved.
While developers and gaming companies form one side of the coin, the other is made up of the video game users who are restricted by the manner in which games have been programmed. Whether it is a video game or a software, the cyber world is almost always curbed by contracts and agreements. Even social networking websites require users to ‘agree’ to terms and conditions that curtail conduct, speech and the existence of the account. Anyone who has ever installed a software on their PC would be aware of these end-user license agreements or EULAs, terms of service/ use, privacy policy as well as codes of conduct (Dannenberg, Mortinger and Christ 6). While there may be sufficient legislation pertaining to the rights and obligations of users, there are few laws to govern the protection of the intellectual property of game developers.
There is an end-user license agreement between the user and the operator of an online video game or virtual world. This agreement governs the rights and obligations pertaining to the game and is ‘signed’ or accepted electronically by a user at the registration or installation stage. EULAs are highly customizable and are hence commonly used as intellectual rights pertaining to gaming content. At the same time, they fall under the general laws pertaining to laws on contracts such as limited modification and privacy (Sites, Peele and Fairfield). Users who do not accept the terms and conditions mentioned in the EULA are generally not granted access to the game or virtual world.
End-user license agreements or EULAs are used extensively among the virtual community. The legislative authorities are trying to align these agreements with the objectives and needs of users, creators and operators of video games and virtual worlds. The manner in which these EULAs will be modified and refined is uncertain. As new virtual worlds are developed, the requirements of the industry keep changing too, making it a constant effort to evolve EULAs to keep pace with the developments. Currently, these agreement leave little scope for users to protect their rights and are more operator oriented. However, with basic legal principles in place for the governing of games, gaming world rights have some semblance of a guideline to abide by.
Although this is the most common agreement or contract so far as gaming governance is concerned, EULAs are not the only means of intellectual property protection in the gaming world. Developers, contractors, as well as users, fall under the purview of other laws that are aimed at protecting intellectual property. These include patent, trademark, copyright and trade secret legislation. It is through the thorough understanding of the rights granted to them through the provisions in these laws that developers, contractors and users can protect their individual intellectual properties pertaining to video games and virtual worlds.
Patenting of video games and virtual worlds is possible only when they are software based and have been properly claimed, as long as they are novel and non-obvious. However, patenting can become very difficult for video games as, in most cases, the basic script or concept will have similarities with several pre-existing games. As such, it is tough for creators to establish that their game is genuinely an invention and not merely a modified version of another product. Failing to establish that their game is not obvious and yet going ahead with its launch could itself be claimed to be a copyright and patent infringement. However, legislation has not yet decided whether the online version of a game is separate from its real life product. Hence, a company may create a virtual world based on a real life game and claim a patent for it. Again, this poses a great threat to the intellectual property of video game creators who have not launched online or virtual versions of their products (Warren and Chang).
Online video games and virtual worlds that allow users to create their own avatars and personalize the virtual existence face tremendous challenges so far as trademarks are concerned. Freedom of expression is one of the key drivers of gaining user base for an increasingly competitive gaming industry. Creators and owners of such find it difficult to maintain a balance between trademark protection and avoiding consumer confusion. As a growing number of people enroll for online games, marketing and advertising of products within online gaming environments and virtual worlds is becoming increasingly commonplace. This can add to consumer confusion as if not carried out under proper legal guidance, may result in trademark misuse as well. Consumers demand for customization options in such games is a key criteria for expression and hence its limits remains ill-defined, leaving great scope for trademark abuse (Ford and Manevitz).
Open source or free games that are available online pose a new challenge to intellectual property. Open source projects are mainly undertaken for academic purposes and the source code for such games are openly available. Maintaining intellectual property protection is nearly impossible in such cases. Developers of such products have been concerned for years of their rights being abused and hence are always hesitant to share codes in order to maintain programming control.
There is insufficient awareness among both creators and users about the copyright laws that govern video games and virtual worlds. Better awareness and educating all parties involved regarding these laws is crucial towards reducing copyright infringement crimes. Developers of video games need to know what part of the game can be covered by copyright laws and how these rights can be protected. One step towards accomplishing this is to bring about a synergy in which users, developers and operators put down their agreements in writing, stating the rights of each and establishing licensing rights to third parties. There are several legal alternatives such as negotiating, filing takedown notices, out of court settlements as well real world court litigations. The virtual world industry is fairly new and still in its evolutionary stages. As these environments develop and their user base grows, there will be added need for the formation of legislation pertaining to copyright laws for intellectual property.
Trade secrets do not gain as much importance as patents and copyright laws do when it comes to video games and virtual worlds yet such information that is not covered under patent and copyright laws also needs to be protected in order strengthen the intellectual property. However, as trade secrets are so loosely defined, it has been difficult to bring them under legislation by themselves.
In order to resolve the issue of lack of trust between developers and contractors over the ownership of source codes and programming control, it is crucial that creators of games are fully aware of their intellectual property rights and how to protect them. This will give them the confidence to encourage better cooperation and lead to more fruitful development of projects. Similarly, contractors need to acknowledge that creators have their own unique practices and ways of working. By understanding the mindsets of developers and their legal rights, contractors will be able to design contracts and agreements that protect their own business interests as well give the developers the outcome they seek.
Works Cited
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Neclerio, John M. and Matthew C. Mousley. "Copyright law implications in video games and
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"Updated Gartner: 90% of corporate efforts fail in 18 months (Chalk it up to experimentation?)."
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