The Quest For Intellectual Property Protection: A Global View On Video Game Characters’ Copyright

Ravi Sharma

16 Nov 2023 5:51 AM GMT

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  • The Quest For Intellectual Property Protection: A Global View On Video Game Characters’ Copyright

    The digital age has witnessed an unprecedented surge in the popularity of video games, turning them into a mainstream form of entertainment. Central to the success of many video games are the characters that inhabit these virtual worlds. The protection of these characters under copyright law is a critical aspect of safeguarding the creative efforts invested in their design and...

    The digital age has witnessed an unprecedented surge in the popularity of video games, turning them into a mainstream form of entertainment. Central to the success of many video games are the characters that inhabit these virtual worlds. The protection of these characters under copyright law is a critical aspect of safeguarding the creative efforts invested in their design and development. This article delves into the copyrightability of video game characters, conducting a comparative analysis of India and other key jurisdictions, namely the United States, the European Union, and Japan.

    United States

    Under the Copyright Act, 1976, the United States, a leader in intellectual property law, offers a strong foundation for the protection of video game characters. According to the 1976 Act, Section 102(a), “original works of authorship fixed in any tangible medium of expression” are protected by copyright. Video game characters may be considered artistic expressions. An important precedent was established in the seminal 1982 case of Atari, Inc. v. North American PhilipsConsumer Electronics Corp. The Court decided that if video game characters were fixed in a physical medium and shown enough originality, they might be protected by copyright. This ruling established precedent for further cases and constituted a pillar in the American legal system's recognition of the copyrightability of video game characters.

    European Union

    Video game characters are protected in the European Union in accordance with the more general copyright standards that are outlined in the Berne Convention and the Information Society Directive. Characters as well as creative works of literature are recognised for protection under the Directive. Bezpečnostní softwarová asociace v.Ministerstvo kultury (2012) is one of the well-known instances that highlights how crucial originality is to copyright protection. Characters must be the product of artistic decisions in order for copyright protection to be justified, according to the European Court of Justice (ECJ), which has repeatedly upheld this rule. This emphasis on uniqueness makes sure that characters that are just stock images or don't have any distinguishing qualities can't be protected. Though comparable to the US system, the EU framework emphasises the need for creativity in particular.

    Japan

    Japan, a major player in the world of video games, has laws that specifically protect virtual characters. In Japan, characters that display uniqueness are granted copyright protection. Since video game characters are unique, the Japanese Copyright Act, 1970 protects their distinguishing features and visual components. According to Section 10 of the Japanese Copyright Act, 1970, a work must be fixed in a physical medium in order for it to be protected, whereas Section 2 of this Act defines “work” broadly to include a variety of artistic expressions. Although not specifically pertaining to characters from video games, the Chūsei Publishing Co. Ltd.[i] case, upheld the copyrightability of manga characters. The Court decided that if a character was unique and showed enough creativity, they might be protected by copyright.

    India

    In India, it is difficult to defend creators' rights, especially when it comes to video game characters, because there is no specific regulation for online gaming. The Ministry of Electronics and Information Technology has recognised the necessity for particular regulation in light of this gap. Although there are no specific protections for video games in the Copyright Act, 1957, several of its components—such as music, literary, and creative works—may be protected by Section 14. Nevertheless, the Act does not deal with the particular difficulties that video game characters present. While some components of video games are recognised as cinematic work by the Ministry of Electronics and Information Technology, the lack of explicit regulation puts creators' intellectual property rights at risk. The absence of specific safeguards for video game characters in the Copyright Act, 1957 raises serious concerns, even if the Act has measures protecting moral and economic rights.

    The Kerala High Court recognised the appellant's cartoon character's copyright protection in V. T. Thomas & Others v. Malayala Manorama Co. Ltd. (1989). The appellant was considered the legitimate proprietor of the characters as he developed them before to starting work for the defendant. The appellant was given permission by the court to carry on working even after his job was terminated. The defendant was only permitted to assert copyright for versions that were released while the appellant was employed, the Court said, stressing that the publishing business had no involvement in the development of the characters. The Court further banned third parties from employment involving the appellant, Mr. Thomas,'s drawings of these figures. The High Court of Bombay examined the copyrightability of characters in the Arbaaz Khan v. North Star Entertainment Pvt. Ltd. (2016) case, emphasising the characters' individuality. Regarding the character ‘Chulbul Pandey’ from the Dabang Franchise, the Court acknowledged its distinctive depiction and bestowed upon it the classification of literary work under copyright. The plaintiff's copyright over the character 'Chulbul Pandey' was upheld by the Court, which emphasised that characters created and realised by persons who are entitled to copyright should be safeguarded. The ruling states that a character's eligibility for copyright protection is influenced by its uniqueness and creative expression.

    Challenges in India

    The challenges surrounding the copyrightability of video game characters in India arise from the absence of dedicated legislation addressing this specific aspect of intellectual property. Video game characters are neither specifically recognised by Indian law, nor does it offer comprehensive guidelines for their protection.

    There isn't any specific law in India covering video game character copyright protection in its entirety. The main piece of legislation pertaining to intellectual property rights, the Copyright Act of 1957, does not specifically contain measures designed to address the special traits and difficulties that video game characters present. Originality is one of the primary prerequisites for copyright protection. Although unique literary, dramatic, musical, and creative works are protected by the Copyright Act, it is unclear what constitutes originality when it comes to video game characters. It is difficult to determine whether video game characters are protected by copyright since the standards for judging a character's uniqueness need to be made clear.

    Video games are dynamic and always changing in tandem with technology. The gaming industry's swift advancements in graphics, animation, and storyline pose challenges for determining the extent of protection afforded to video game characters. Laws must alter to keep up with these technological advancements; this is a problem that more conventional legal systems would find hard to meet. While in our country, there aren't many case laws and precedents that particularly address whether video game characters are protected by copyright. For those who create video games, it might be difficult to predict what kind of protection their characters will have in the absence of definitive Court rulings or precedent-setting cases.

    On the other hand, global scope of the video game business demands that copyright protection be handled uniformly. Globalisation of the creation and distribution of video games might provide issues for overseas creators looking to protect their characters in India due to variations in copyright laws across different jurisdictions.

    The copyrightability of video game characters is a constantly changing and intricate legal matter, especially as the video game industry develops further. India has not yet caught up to nations like the US, the EU, and Japan, which have put in place legal structures for the preservation of these characters. In order to contribute to the global conversation on intellectual property protection in the digital age, it is imperative that Indian copyright legislation be brought into compliance with international norms. Legislators and the Courts in India need to take a proactive approach to understanding the subtleties of video game copyright in order to establish a strong legal foundation that will foster innovation and creativity in the rapidly growing gaming sector. Not only will the rights of producers be safeguarded by the harmonisation of Indian legislation with international norms, but India’s standing in the world of gaming will also be improved.

    This thorough comparative analysis indicates how important it is to have legal frameworks that can change to keep up with the rapidly changing gaming industry and how important it is to have a sophisticated understanding of copyright principles in light of video game characters.

    The author is an Advocate practicing at Delhi High Court.Views are personal.


    [i] Chūsei Publishing Co. Ltd. v. Japan Periodical Publishers Association, 1980

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