The gaming industry is a dynamic field ignited by innovation and creativity. In India, the market value of the gaming industry is $1.8 billion, growing at 38% annually. With more than 15,000 game developers and more than 275 gaming companies, India aims to capture 5% of the global gaming and animation market by 2025, potentially creating 160,000 new jobs. However, the country currently lacks specific legislation to protect IP rights in the video game industry. To succeed, the industry must implement strong intellectual property (IP) protection for its creations. This Article examines the connection between IP rights and gaming, highlighting the specific types of Intellectual Properties relevant to the gaming industry. It also undermines the challenges creators and publishers face while developing new video games. It analyses the significance of copyrights and trademarks in safeguarding valuable assets while addressing issues like counterfeiting and infringement.
In the gaming industry, infringement of intellectual Property rights often occurs through reverse engineering. Reverse Engineering is basically a process where individuals analyse and replicate a game's source code, and copy its name, characters, colours, and designs. This can create confusion among players and challenge the exclusive rights of original creators. User-generated content (UGC) creates another layer of intricacies to IP protection if players introduce unauthorized elements into games. Reverse engineering violates intellectual property rights, authorizing individuals to develop and sell versions of existing games that mimic the originals, further muddling the space for consumers. The rise of UGC has deepened concerns about IP protection, making it clear that these practices violate a game's intellectual property rights.
Game Cloning: Replication and sale of games under different names damaging creators' reputation and revenue.
Generic Branding: Common names (e.g., "cricket" or "rummy") lead to disputes raising the issues of generosity. That’s why unique trademarks are essential.
Third-Party IP Usage: Use of Player names, photos or characters without the consent of the author leads to legal risks
Unclear Copyright Protection: Uncertainty around characters, graphics, and story copyright creates challenges.
Weak IP Enforcement: Protecting only parts of the game isn’t enough; comprehensive safeguards are needed.
Monitoring Gaps: Companies need better systems to effectively detect and act against violations.
Copyright protection safeguards the creative and artistic expression in a game, including the game's code, artwork, music, and narratives. It guarantees that creators of such video games have exclusive rights over their original works, preventing unauthorized use or reproduction. Copyright protection in games is determined through the Idea-expression dichotomy. According to this concept, copyright protects the expression of Ideas and not merely an Idea. Unless an idea is expressed in any intangible, it can’t claim protection under Intellectual Property Rights.
For a work to qualify under copyright protection, it must be an original creation of the author. Merely copying or rearranging an existing creation by making minor changes would not meet the originality criteria. The author, as the creator of the game features, holds the right to claim protection.
Gaming features like characters, music, artwork, and programming are protected under copyright. According to Section 13 of the Copyright Act, of 1957, the elements of literature, music, art, and cinematographic works of a game fall under copyright protection. The following elements are as follows
Definition under Copyright Act: Section 2(o)
Element of Video Game to be protected: Protection of software present for the functioning of the game
Example: A game containing storyline before the commencement of the actual game
Definition under Copyright Act: Section 2(p)
Element of Video Game to be protected: Protects the sound incorporated in the games
Example: The distinctive sound of achievements and actions in a gameplay
Element of Video Game to be protected: Characters present in the games
Example: Mario in Pokemon
Definition under Copyright Act: Section 2(f)
Element of Video Game to be protected: Moving images (animation)
Example: When a book is converted into a game and then into a movie.
Remedies Available Against such Infringement
Section 55 of the Copyright Act, of 1955 provides Civil remedies for such infringement
1. Interlocutory Injunction: A temporary Court to prevent harm or preserve the status Quo unless any final decision is made
2. Anton Pillar Order: A court order authorizing the seizure of evidence from the defendant's premises without prior notice
3. Mareva Injunction: A court order freezing the defendant’s assets to prevent them from being dissolute before a judgment.
4. Norwhich Pharmacal Order: A court order requiring a third party to disclose information to help in identifying wrongdoers.
5. Damages: Monetary compensation awarded to a party to compensate for loss or injury caused by another party’s wrongful act
Section 63 of the Copyright Act, of 1955 provides criminal remedies for such infringement
1. Imprisonment up to 3 years but not less than 6 months
2. Fine not less than 50,000 and can be extended up to 2 lakhs
Legal Standpoint of gaming on Streaming is limited due to less number of Precedents. Section 51 of the Copyright Act prohibits unauthorized use of gaming elements like characters, graphics, music, and text. Streaming of such a game without the owner’s consent may amount to infringement. However, audience comments during streams are protected as fair use under Section 52, as they constitute criticism or review.
To mitigate such situations, the Court analyses the following factors before pronouncing its decision:
Whether a substantial part of the game is publicly shared.
If the game is story-driven (less protected) or skill-based (more protected).
Presence of audience comments supporting fair use.
Whether streaming is for commercial purposes
Trademarks play an essential role in safeguarding the branding elements of a game which the game's name, logos, and other distinctive features help in establishing its identity in the market and set it apart from competitors. Trademarks prevent others from using similar names or logos in the gaming world. The trademark separates different elements of video games. It may be a character from the game or a phrase, letter, gadget, name, or logo. Without trademark protection, players won’t be able to distinguish between the original game and the gadget they’re using
Under the Trademarks Act of 1999, game titles, characters, logos, and slogans gets protection. Companies commonly register under Nice Classification categories:
Class 9: Gaming apparatus (headsets, smart glasses).
Class 28: Toys and gaming instruments.
Class 41: Education and entertainment services.
Class 42: Computer programming services.
Merchandising in gaming consists of using intellectual property to create products like toys, clothing, and accessories that resonate with fans. Examples include Pac-Man-shaped toys, Subway Surfer-themed t-shirts, or Call of Duty-inspired coffee mugs. Fictional characters like Mario, Batman, and logos can act as trademarks under common law, even without registration, if they distinguish goods or services.
The gaming industry faces trademark infringement and counterfeiting, causing confusion among consumers and economic loss for trademark owners. Sections 29 and 135 of the Trade Marks Act address infringement and civil remedies. Counterfeiting involves the intentional replication of trademarks to exploit the goodwill of legitimate brands, often leading to legal consequences under Sections 102 and 103 of the Act
1. Section 29: Infringement of Trademark
This section deals unauthorized use of a trademark that is identical or deceptively similar to a registered trademark, leading to confusion about the origin of goods or services.
2. Section 135: Remedies for Infringement
This section provides civil remedies for trademark infringement and passing off, including:
Injunctions: To prevent further use of the infringing trademark.
Damages or Account of Profits: Compensation for losses or gains made by the infringer.
Delivery Up: Requiring the infringer to surrender infringing materials for destruction or disposal.
Section 102: Counterfeiting
This section defines counterfeiting as the intentional use of a false trademark on goods or services to deceive consumers, violating the rights of the trademark owner.
Covers counterfeit products and their distribution.
Involves wilful intent to replicate a registered trademark for unlawful gain.
Section 103: Penalty for Applying False Trademarks, Descriptions
Imposes penalties for using false trademarks or trade descriptions, including
Imprisonment: Up to three years.
Fine: Ranges between ₹50,000 and ₹2,00,000.
Applies to those involved in manufacturing, selling, or applying false trademarks knowingly.
Section 30: Limits on Effect of Registered Trademark
Provides defences against infringement claims, including:
Descriptive Fair Use (Section 30(2)(a)): Use of a trademark to describe attributes like nature, quality, or intended use of goods or services, without misleading consumers.
Normative Fair Use (Section 30(2)(d)): Permits use of trademarks for purposes like comparisons, analysis, or identifying complementary goods, provided it does not imply sponsorship or endorsement.
In Consim Info Pvt. Ltd. v. Google India Pvt. Ltd., the Madras High Court defined "reasonably necessary" under Section 30(2)(d), establishing that:
The product must not be identifiable without the trademark.
The mark can only be used to the extent necessary.
The use must not imply sponsorship or endorsement.
These sections collectively establish the framework to protect trademarks while allowing certain fair uses under specific circumstances.
Patents in India provide territorial rights for up to 20 years. For example, a patented game engine integrates various technologies like graphical tools, artificial intelligence, and network systems into a cohesive platform for developing games playable on consoles or smartphones. Notable game patents include Monopoly (1935), Rubik’s Cube (1983), and Battleship (1935).
As per Section 3 of the Patent Act, 1970 Computer Programme per se are not considered under Patentable Subject matter. However, the 2005 Amendment to the Patent Act, of 1970 stated that "a computer programme per se is not patentable "other than its technical application to industry or a combination with hardware". Thus, a computer programme that possesses a technical qualification to the industry or one which is combined with hardware would be capable of being granted a patent in India. Computer programmes that have the effect of controlling computers to operate in a particular way, where such programmes are embodied in physical form are patentable.
A video game is usually defined as "an automated or high-tech game played by manipulating images on a video display or T.V screen.", and includes console games, PC offline games, online games, and wireless games.
“Odyssey System”, developed by Ralph Baer was the first video game to receive Patent in the world in the Year 1968
Design protects the appearance of a product. Until recently, Design was not very relevant in the video gaming industry. However, in the recent past applications for registration in the European Union have increased exponentially. Barely some graphic elements of a video game like the icons used, GUI, and appearance of the characters, can be protected as designs. In short, design rights protect how elements of the game look but not how they work. For a design to be protected, it must fulfill the requirements of novelty and individual character. A design is novel or new where no identical design or designs, where the features differ only in inconsequential details which have previously been made available to the public. It will have individual character, where the overall impression it produces on the informed user differs from that produced by a design previously made available to the public. An application to register a particular game element will be unsuccessful if a similar, earlier design already exists.
The evolution of the gaming industry and its contribution to the global economy underline the need for strong Intellectual Property protection as a driver of innovation. This is true that India’s gaming industry has made significant progress, but the absence of specific legislation on IP rights presents challenges for creators and developers. Infringement through reverse engineering, game cloning, and generic branding undermines the creator’s and consumer trust. The different types of IPs like Copyrights, trademarks, patents, and designs are there to protect various aspects of video games, from creative elements to technological innovations. Fragile enforcement and monitoring gaps obstruct effective protection. By establishing wide-ranging legal frameworks and raising awareness of IP rights, India can safeguard its creators and foster growth. Strong IP protection will secure developer rights while supporting a vibrant ecosystem that blends creativity and technology.
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