In his fourth submission to our SpicyIP Fellowship applicant series, Thomas Vallianeth brings us an interesting post discussing the copyright issues that arise in Open World Gaming – the phenomenon of immersive gaming with dynamic environments and character development. With this submission, we have concluded our 2nd annual SpicyIP Fellowship applicant series and we thank everyone who has participated in it! We should be announcing our new SpicyIP fellows later tonight!
Copyright Aspects in Open World Gaming
Video game enthusiasts might notice a recent phenomenon taking over most of their games – open world gaming. Conventional video games (at least till the last decade) had pre-determined environments and objectives that gamers must tackle in order to complete the game. The graphics in the game are a repetition of the same scenery in different contexts and objects used in the game are recycled. The interactions that gamers have are restricted and are often pre-determined and correlated to a particular outcome.
Contrast this with the newer game titles such as the Assassin’s Creed franchise, Grand Theft Auto V, Skyrim and Witcher 3 to name a few. In these games the environment in which a gamer plays is seemingly endless with unique interactions with every object. These graphics are often drawn by the gaming console while the player is playing a game (instead of drawing it in advance) in reaction to the choices he makes. Such games are dynamic rather than iterative, and are immeasurably more complex than the earlier generation of games. They have thrown to light some fairly interesting copyright law questions which need to be analysed.
The need for such an analysis is because different components of these games would be granted different forms of copyright protection (as will be analysed below) and therefore subject to different exclusive rights under S.14 of the Copyright Act. This approach is in contrast to the one utilised previously which considered video games to be computer programs and therefore merely entitled to protection as a literary work (due to the application of S. 2(o) of the Act). This post will analyse the protection accorded to each major element of such games.h unique interactions with every object. These graphics are often drawn by the gaming console while the player is playing a game (instead of drawing it in advance) in reaction to the choices he makes. Such games are dynamic rather than iterative, and are immeasurably more complex than the earlier generation of games. They have thrown to light some fairly interesting copyright law questions which need to be analysed.
1. The Story: Most open world games include a storyline that is as dynamic as it is interesting. The plots often change due to choices that the gamer makes while he is playing the game. These various storylines have to be designed by the storyboard directors of gaming studios and combined with the requisite software that will govern the progress of the storyboard itself. Therefore, the story itself will be granted just literary work protection (Bissoon-Dath v. Sony Computer Entertainment) under S.14(a) and the program under S.14(b).
2. The Graphics: Probably the most complex aspects of these open world games are their graphics. Due to their dynamic and expansive nature (for example in Assassins Creed IV the graphics are so advanced that you can see leaves reacting to the rain and the movement of the player) developers often employ game engines viz. programs that generate these graphics depending on the progress of the game. However, due to the extreme attention to detail employed in these games, objects (like trees, buildings etc.) are not recycled from one frame of the game to another. Huge art teams are employed that develop detailed artwork that is entitled to protection under S.14(c), as distinct from the program that generates it. This is noteworthy because a number of people sell costumes and objects that are employed in games, with the distinctive artwork, which is clearly a violation of the exclusive rights to convert this artwork into a 3D form under S.14(c)(i), which is not available to computer programs. The copyright in the program will subsist nevertheless as under S.14 (b). However there is a distinction to be made here. There exist game engines that are capable of creating graphics by themselves without pre-drawn artistic elements. Section 2(d)(vi) of the Act suggests that these are granted protection as artistic works.
3. The “cut-scenes”: Cut scenes are short movies that are played in video games to indicate progress of the plot and have been a common feature in video games for a while now. The analysis here must also take into account the distinct elements, the software that triggers their playing as distinct from the clip itself. The latter entitled to different protection under S.14(d). This is interesting to consider in the light of computer game trailers and gameplay videos that make use of these cut scenes which would amount to infringement, if arguments of fair use are not taken into account.
4. Sound and music: Open world games employ a large variety of sounds that adapt to the environment that the player is playing in. As with the graphics, sounds are triggered by specific engines that the game developers employ for the purpose. Therefore the music or the sound itself as distinct from the program that triggers it will be entitled to protection under S. 14(a). There is a practice among YouTube users to “rip” recordings of soundtracks from game files and post them online in the form of videos. This would also be a breach of exclusive rights under S.14 (e) of the Act because the game files are ultimately sound recordings.
5. The character: Due to the dynamic nature of open world games they allow the development of characters in the game which may vary across gamers due to different in game choices that they make. Therefore, while characters may be protected under Indian copyright law, their features may not be easily delineable in this case, weakening any arguments for their protection.
The thrust of this discussion is that open world gaming contains elements that need to be granted distinct protection as opposed to the generic protection as computer programs.