Due to their complex and cross-cutting nature, video games present a number of questions and challenges in terms of copyright.
The current landscape of the legal protection of video games appears extremely complex indeed. Although Article 2 of the Berne Convention provides a solid basis for eligibility for protection of video games by copyright, they are in fact complex works of authorship, potentially composed of multiple copyrighted works.
Modern video games contain at least two main parts:
(i) audiovisual elements (including pictures, video recordings and sounds); and
(ii) software, which technically manages the audiovisual elements and permits users to interact with the different elements of the game.
As a result, questions related to the legal regime applicable to video games do not have obvious answers. For some countries, video games are predominantly computer programs, due to the specific nature of the works and their dependency on software. Whereas in other jurisdictions, the complexity of video games implies that they are given a distributive classification. Finally, few countries consider that video games are essentially audiovisual works.
In parallel, the level of complexity is growing significantly due to the fact that in recent years the market for video games has continued to evolve exponentially. As a consequence, current video game development can involve a greater number of specialists engaged in complex works of authorship. Whether these professionals hold copyrights or not will depend on their contribution to the work and the specific requirements of each jurisdiction.
Against this background, on the basis of the interest expressed by governments and several stakeholders, WIPO has decided to further research the topic and to undertake specific and much needed awareness-raising activities. Among these activities is a study commissioned by WIPO entitled “The Legal Status of Video Games: Comparative Analysis in National Approaches” (the “ Study”), authored by Messrs. Andy Ramos, Anxo Rodriguez, Tim Meng, Stan Abrams and Ms. Laura Lopez.
The Study includes a survey of national legislation on the protection of video games in the field of copyright that covers the following jurisdictions: Argentina, Belgium, Brazil, Canada, China, Denmark, Egypt, Germany, India, Italy, Japan, Kenya, the Republic of Korea, Rwanda, Russia, Senegal, South Africa, Spain, Sweden, the United States of America and Uruguay.
The authors analyze the approach that each country has adopted for the protection of video games, and consider the status of the main stakeholders involved in the value chain and in the chain of rights, including authors, publishers and producers. They also describe the different regimes applicable to the transfer of rights among stakeholders and provide a tentative classification of these complex works.
In their conclusions, the authors identify emerging trends and areas in which further clarity and harmonization on the legal status of video games would be beneficial for the industry and stakeholders involved. Looking forward to possible solutions to those complex issues, they highlight the importance of facilitating a debate at the international level with the participation of all key stakeholders.
The text of the The Legal Status of Video Games: Comparative Analysis in National Approaches can be found here.