Video Games: IP Considerations

Introduction

IP lawyers and advisors to video game firms must be creative. This is because:

• the financial value of the video game industry is high and has been increasing dramatically, especially during the covid-19 pandemic;
• it is important to address the global reach of the video game industry, but to treat it from a local law perspective;
• numerous actors are involved in the video game industry; and
• video games are complex works of authorship, comprising diverse IP rights.

The video games industry is growing enormously worldwide. As of 2021, it was worth more than $175 billion, of which $90 billion corresponded to mobile gaming. It is thought that the industry will reach $218 billion by 2024.

Video Game Development Routes

There are several routes through which a game can progress from the developer to the gamer:

• from the developer, via a physical copy to the gamer;
• from the developer, via a platform (eg, Google or Apple) to the gamer; or
• from the developer; via a platform and an internet café to the gamer.

It is important to consider the implications of these different actors in the context of IP rights disputes.

Types of IP Rights Involved in Video Games

The IP rights involved in video games include:

• copyright – this is the most important portion. It may cover music, software and images;
• trademarks – these protect the names of video games, which play a significant role in their notoriety;
• trade secrets – these protect information that is not disclosed to the public;
• patents – these can protect hardware or software; and
• right of publicity – this is particularly relevant in the context of sports games, where the likenesses of real people are used.

As well as IP rights, data protection and regulatory issues (eg, to do with gambling) are also important considerations with regard to the video game industry.

Types of IP Rights Disputes Relating to Video Games

The most common types of IP rights disputes relating to video games include:

• IP ownership disputes – disputes may arise as to the ownership of patents, copyright or designs between the video game inventors, designers and authors;
• IP licensing disputes – contractual issues may arise from the different video game development routes, not only between different stakeholders, but also between the developer and the gamer;
• IP infringement disputes – disputes may arise, for example, regarding the use of a similar concept, trademark or design;unfair competition disputes – these pertain to the infringement of unregistered rights, such as trade secrets; and
• IP piracy – disputes may arise as to unlawful copying, distributing or streaming video games.

Anti-piracy options for video games In the case of physical piracy, it is possible to obtain seizure orders. Alternatively, in situations of online piracy, the rights owner may request a takedown, either through local laws or via the platform. It is important to be aware that it is optional to register a video game – the rights owner does not need to register its copyright in order to claim infringement. ADR options for video games IP disputes Alternative dispute resolution (ADR) methods for video game IP rights disputes are often overlooked. However, ADR methods have several advantages, particularly when brought in front of specialised institutions such as the World Intellectual Property Organization: they avoid the need for multijurisdictional litigation – especially important given the global nature of the video games industry; they can provide speedy solutions, at a lower cost to the rights owner; the procedures can be flexible; the parties involved may be able to select their own technical experts; and the procedures are confidential.

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