News & Insights
Digital Gaming Law - Part 2
Esra Gökçe Saltık | ASSOCIATE23.03.2023
Onur Küçük | MANAGING PARTNER23.03.2023
Touching different parts of an elephant from different angles, a group of visually impaired people
identify the elephant in different ways. Tree trunk, boa constrictor, wall, palm leaf and rope. The
analogies are often accurate, but also inaccurate. "There is no doubt that an elephant is more than
its constituent parts, and we are blinded by our past," Richard Lehrberg said at a conference in
Cannes in 1994, describing multimedia works. A digital game comes together from many parts and
different elements, and when we try to evaluate it as a whole, we cannot put it into a single mold
and benefit from a single legal protection. Digital games are a whole made up of different works.
In our legal system and legislation, the infrastructure to resolve disputes and problems regarding
digital games is not fully in place. The courts and doctrine do not recognize digital games as works,
but there is still no clear determination as to which type of work they are. Evaluating digital games
within a single category of work is not sufficient to protect all of their elements. Digital games are
complex entities; the script, software, graphics and visuals, music, locations and sounds of the game
can be protected separately if they meet the conditions of a work.
Digital games can benefit from a single protection as a whole, or the elements that make up the
game can be protected separately.
Holistic Protection of Digital Games
In terms of holistic protection, court decisions and doctrine agree on the protection of digital games
as cinematographic works, even if there is no de facto distinction. Digital games are similar to
cinematic works in terms of many elements. The game has active and passive phases and players are
involved in the active phases. In the passive stages, the quality of the scenario is usually dominant.
There are images and sounds in the form of short films. The cinematic quality of these passive stages
is evident and players do not contribute to the game in these parts. Passive stages are very common
in 3A games. To increase the realism in games, these scenes are staged by real people in movie
studios. One of the most important elements that distinguishes digital games from cinematic works is
the element of interactivity.
Mount & Blade Warband, a Turkish-made game based on the Middle Ages, is a diplomacy-based
game in which a single person tries to be a commander or king and manages his soldiers and trades
within his own reign. There are many different modes in this game and one of these modes,
Diplomacy 4.litdum, is a highly acclaimed mode with improved artificial intelligence. The person who
developed this mode states that he created this mode in about a year. So, as you can see, there is a
certain framework in games, like in movies, but the interactive aspect is more dominant and the
player can contribute functionally to the game.
Can digital games be protected as computer programs?
In computer programs, which are technical in nature and most of their constituent elements are technical, the special feature is sought in the code. However, digital games are complex formations; the element of interactivity, scenario, graphics, sounds and many other elements can be sought in particularity. Digital games cannot be protected as mere computer programs, but this does not mean that the computer code in their content cannot benefit from this protection. The Court of Justice of the European Union stated in a case where Nintendo Co. Ltd was the plaintiff and PC Box Srl, 9Net Srl were the defendants that the protection provided to digital games cannot be reduced to computer programs. Computer programs are considered and protected as works of science and literature under FSEK. Even if not yet completed, a computer program in the concretization phase can benefit from FSEK protection.
Separate Protection of Each Element of Digital Games
Digital games are composed of a combination of different types of works and each of their elements may be subject to protection separately. The game's script, software, original music, locations and characters in the game, sound designs can be subject to copyright infringement in different ways and can be examined.
Protection of the Elements of Scientific and Literary Works
According to Article 2 of FSEK, works of science and literature are as follows:
1. Works expressed in any form of language or writing, and computer programs expressed in any form, and preparatory designs thereof, provided that they result in a program at a later stage,
2. All kinds of rakis (dances), written choreography, pantomimes and similar non-verbal stage works
3. Photographic works of technical and scientific nature, all kinds of maps, plans, projects, sketches, drawings, paintings, models and similar works of geography and topography, all kinds of architectural and urbanism designs and projects, architectural models, industrial, environmental and stage designs and projects.
The ideas and principles underlying any element of a computer program, including the ideas and principles underlying its interface, are not works. Computer programs are protected as works of science and literature.
Computer code and software are protected under this article. Works that can be expressed in language and writing are also protected under this article. In terms of the protection of the dialogues in the game, it is important that the protection is extremely limited; protection should be activated when they are used in activities such as devaluing the previous work and preventing the work. The famous "You Shall Not Pass" line from The Lord of the Rings- The Fellowship of the Ring is one of the best examples here. iMany products have been developed based on this line of Gandalf's character. It is important to draw the boundaries of protection here, because this simple but effective phrase should not be protected in a way that hinders other people's creativity.
Protection of Elements of Original Music "Musical works are all kinds of verbal and non-verbal compositions." FSEK Art.3D We cannot think that music will not be used in digital games. Any music that meets the conditions of a work is protected. Recordings such as the sound of walking, gunshots, rain sounds in the game cannot be considered within the scope of the work since the concept of specialty cannot be mentioned. The breathing sound of the character Darth Vader in the Star Wars series was registered as a trademark. The trademark describes this sound as consisting of rhythmic, mechanical human breathing created by breathing through a tubular regulator.
Protection of Elements of Fine Art Works
It cannot be said that digital games as a whole are works of fine art. However, a character or a section within the game may benefit from fine art protection.
Sony received a warning letter for using the interior of Manchester Cathedral in the game "Resistance: Fall of Man" without permission. The company was asked to remove the relevant parts of the game in which images of atrocities inside the cathedral had a negative impact on the anti-gun campaigns run by the cathedral. Sony, on the other hand, stated that all necessary permissions were obtained while making the game.
It is not a problem to use real-life architectural structures as part of the scene in games. In cases such as focusing on special details in the building, damaging the building, showing special parts of the building, the necessary permits and licenses must be obtained.
Protection of Elements of a Motion Picture Work
Images and sounds in digital games can benefit from cinematographic protection.
Digital game contracts continue from the production phase of the game until its completion, and even after the completion of the game's production process.
Intellectual property agreements in games;
Content acquisition and retention agreements
Game platform deals
Third party agreements
Publisher-linked IP agreements
Post-game license agreements
End-user license agreements fall into different categories.
Game companies and console manufacturers draft end-user license agreements and terms-of-use agreements to protect their game platforms from reverse engineering and to avoid possible claims of ownership by gamers. Companies thus grant a simple non-transferable, limited license to use the game. For example, a person who wants to publish his/her games on Youtube and earn money from these publications is asked to show the relevant clause of the end-user license agreement. Youtube asks to see this clause in order to prevent possible infringement. In summary, the protection of digital games as a whole or their individual elements does not provide sufficient protection at this stage.
New regulations specific to digital games are required.
In our next article, we will discuss the protection of in-game assets and the rights of players.
*This article has been originally published on Harvard Business Review Türkiye on January 18, 2023. Please click here for the original article in Turkish.