10 Feb 2023 10:44 AM GMT
From a child to an adult, modern gaming has been an interest for most of the generations. In the present times, where recreational activities have been a focal point, the gaming industries like e-sports have been in the front foot. Since 1990’s, the gaming business has firmly established itself, and the digital gaming market in India is expanding at a rapid rate especially...
From a child to an adult, modern gaming has been an interest for most of the generations. In the present times, where recreational activities have been a focal point, the gaming industries like e-sports have been in the front foot. Since 1990’s, the gaming business has firmly established itself, and the digital gaming market in India is expanding at a rapid rate especially after 2000. A video game essentially contains a collection of contractual and intellectual property rights. These rights are utilized in various essential elements of the game including the soundtrack, persona of characters, artwork covering the game’s codes, etc. Thereby, taking cognizance of the fast expansion of this industry as well as the increase in the legal protection it demands, the field of Intellectual Property Rights (IPR) becomes quite important in the e-gaming sector and any related creation.
IP PROTECTION AVAILABLE TO THE GAMING INDUSTRY
There are various factors that must be considered before dealing with the IP protection to the gaming industry. Since the gaming sector is not specifically regulated in India, video games are also not included in any one particular category of intellectual property law. Thus, the gaming industry is interpreted to be governed under the following legislations:
1. Copyright: Section 2 of the Copyright Act, 1957 if construed rightly, makes it apparent that the “process akin to cinematography” includes video games within its ambit. If any famous character is copyrighted then the holders not only have an exclusive right to use the character but also have merchandising rights of the character and cannot be sold without an authorized license. The Delhi High Court also granted an ex-parte injunction in Sony Computer Entertainment Europe Ltd. v. Harmeet Singh and Ors. for illegal distribution of unlicensed video games.
2. Trademark: Trademarks protect the names, logos, and symbols associated with the game, its characters, as well as the distinctive packaging used to sell and market the gaming materials. While Section 30 of the Trademark Act provides some exceptions, it generally prohibits the use of a registered trademark in a descriptive manner, i.e. in connection with goods or services to describe the nature, degree, quantity, intended use, value, place of origin, etc.
3. Patent: As per S. 3(k) of the Patent Act, 1970, a computer programme “per se” is not patentable. Nevertheless, if the computer programme to be patented can establish a connection with the ancillary hardware components, or perhaps illustrate a technical effect created due to its application, a patent for the same may be obtained. In Mattel Inc. v. Mr. Jayant Agarwalla, it was held that in relation to games, rules and schemes (for playing) are not protectable under the Patents Act, 1970.
4. Design: The Designs Act protects the visual elements of the games, including their visual interface and gaming covers. Only the external features of game characters and other models are protected by industrial design in the gaming business, not any technological functionality.
VARIOUS IP ISSUES INVOLVED
1. Live Streaming: There are numerous legal issues associated with broadcasting video games on different video platforms for paid members without the consent of the game developers. Apart from the obvious IP law infringement, which would occur if the game makers decided to take action on such infringement, such areas are regarded as legal grey areas in the gaming business because at present there are no adequate guidelines or legal support for them. While some game developers support such streaming and tournaments because it publicize their games freely and expressly permits such streaming in their end-user licence agreement, however, there are few well-known game developers who forbid their games from being streamed or used commercially without their consent. Popular YouTube streamers and tournament directors who make millions by participating in and streaming video games with live commentary and running gaming businesses have encountered numerous intellectual property issues.
2. Unauthorised Gaming Tournaments: The unlicensed tournaments have created trouble for many game producers, especially with regard to the unauthorised use of the brand names and logo. There are also gaming tournaments that are lawfully conducted by various institutions in the e-sports business. Since, these tournaments also involve financial transactions, therefore, it causes more loss to the developers.
3. NFT’s and Trademark: Non-Fungible Tokens (NFT) are unique cryptographic tokens that exist on a block chain and cannot be replicated. Tokenizing these real-world tangible assets makes buying, selling, and trading them more efficient while reducing the probability of fraud. The importance of NFT’s in relation to video games has also recently come to light, whether through the creation of NFTs for avatars used in the games, player rewards like clothing or weaponry for their avatars, or even gameplay videos.
Therefore, it is vital to make sure that any trademark protection for the video game also covers any related extra commercial endeavours that might result from a popular video game. In particular, express registered trade mark protection for goods and services such as downloadable media, films, video content, NFT’s and virtual assets must be well-thought-out as part of the trade mark strategy adopted.
4. Game Structure: The development of e-games has several characteristics that have led to some programme elements being copyrighted individually, while others are general creative’s or are in the public realm and cannot be safeguarded by copyright.
5. Parallel between Publisher and Developer: In the past, publishers were responsible for finding finance for game creation, however with the rise of new sales channels and other funding options like crowd sourcing, the functions of publishers and developers are changing. As a result, the intellectual property rights that previously belonged to publishers may now be controlled by a developer, an investment entity, or shared with a publisher. These kind of shifting ownership arrangements serve as another reminder of the need of developers to make themselves aware about the IP rights.
6. Sharing of User Generated Content: Today's modern online games encourage players to create and distribute their own user-generated material, which might include fan art, game tweaks, new characters, narratives, etc. The primary concern associated with this sharing which occurs on the platform associated with the game is the significant risk of infringement of the IP rights of other developers because players may combine the IP-protected material of other online games and affect the IP rights of those developers by using UGC.
Depending on the platform, artwork, complexity of the game play, and whether any underlying intellectual property is licensed in, development costs can vary greatly, but they typically range between millions of dollars. As the video game industry grows in scale and introduces fresh and distinctive elements to numerous game play components, the relevance and implementation of intellectual property law protection to several aspects of the gaming industry will continue to be scrutinized. Since the third parties exploit the identities of famous games and their images to make a lot of money, it is essential for them to get in touch with the game designers before using their games without permission. Also, due to free promotion for their games, some smaller game producers would not have a concern, but larger game makers might not desire to be associated with such third-party competitions without the appropriate authority and licence. Thus, to prevent any legal issues, game publishers, tournament managers, and streamers should abide by licensing agreements.
An immediate need is also felt to amend the current IP as well as IT laws in order to bring specific provisions in relation to e-gaming. In the same direction, the government on 26th December, 2022 through a gazette notification notified Ministry of Electronics and Information Technology as the nodal ministry for online gaming related concerns and also proposed a draft amendment in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to include online gaming platform as an intermediary in order to observe due diligence with respect to infringement of any patent, trademark, copyright or other proprietary rights. It is yet to be seen whether governments across the globe truly understand the video game industry’s massive financial potential and tweak their old structured intellectual property laws appropriately and correctly to confront and resolve the industry’s multiple challenges.
 KPMG, “Beyond the tipping point: A primer on online casual gaming in India”, June, 2021, available at: https://assets.kpmg/content/dam/kpmg/in/pdf/2021/06/digital-mobile-casual-gaming-in-india.pdf
 WIPO Magazine, “The Metaverse, NFT’s and IP rights: to regulate or not to regulate?”, June, 2022, available at: https://www.wipo.int/wipo_magazine/en/2022/02/article_0002.html
 WIPO Magazine, “Video Games and IP: A Global Perspective”, 2018, available at: