Legal Responsibilities of Workers in the Games Industry
What is Copyright?
Copyright is a property right that entitles the owner to prevent others from doing a number of acts to the copyright work. This referred to as a restricted act. It is possible for two identical works to be created and protected by copyright simultaneously, provided that each is created independently without committing a restricted act in relation to the other. Many people are familiar with the idea and expression of idea distinction, which provides that copyright does not protect an idea but only the expression of that idea.
There are several different categories of copyright works. Literary works sound recordings, artistic works and dramatic works. Each of which has to satisfy the basic requirements for copyright protection the work has to be original. It has to be recorded in some form; there are differences between the practical terms of copyright in relation to each of these categories of copyright works. For example, the duration of protection, the criteria for assessing infringement and the default ownership position will depend to some extent on the type of copyright work.
Unlike the US, under English law copyright exists automatically and need not be registered to be enforceable. In the event that one wants to enforce the right against someone else, the courts will first examine whether the work in question is protected by copyright.
Who Owns Copyright?
The rule about copyright is that the author of the work owns the copyright, although the law recognizes that people are often employed to create parts of a copyright work. For example game developers and artists and in those circumstances, subject to certain conditions, the employer is the owner of the copyright in a work created by an employee. The other side of this is that an independent contractor, someone who is not legally an employee, is the owner of the copyright in a work, even if that contractor has been instructed to create that work by someone else for a payment.
Where is copyright protected?
Like all intellectual property rights, copyright exists in relation to a particular legal jurisdiction; this means that the extent to which copyright exists is determined by the copyright legislation in a particular territory. Usually, copyright legislation will require that there is some sort of territorial connection before a work can be protected by the copyright legislation of that country.
This does not mean that a copyright work which, for example, is protected by UK copyright, is not automatically protected in other countries. In fact there are three major international treaties which deal with international copyright protection and enforcement and the UK is a signatory to each of these treaties. While UK copyright will be recognized pursuant to those treaties, there may still be differences in the scope of copyright protection in other territories the most common difference being the duration of copyright protection.
How does this apply to video games?
The most obvious copyright work in a videogame is the computer program. Due to the requirement of being recorded in some material form, it is the object code and the source code which are the elements of the computer programme which are protected by copyright. It’s the source code which is of more immediate use commercially and therefore an infringement of copyright in the computer program will be judged primarily by an examination of the similarity of the source code used in the original programme as well as in the alleged copy. The judgment in Navitaire v Easyjet and Bulletproof Technologies 2005 confirmed that the courts will examine whether source code and graphic elements have been copied, in evaluating claims of copyright infringement of computer programmes.
Apart from the computer program itself, copyright can exist in graphic images, design drawings and sound recordings. The recent Court of Appeal judgments in Nova Productions Ltd v Mazooma Games Ltd and others and Nova Productions Ltd v Bell Fruit Games Ltd 2007 examined in some details claims of copyright infringement in relation to arcade games, in the absence of any alleged copying of source code. The judgments made clear that, while software and graphic elements can be protected by copyright, the recorded materials that are alleged to have been copied will need to be expressed at more than just a general level of abstraction (especially if the relevant features are also quite common) for copyright to actually exist in relation to those materials.
The ownership of the copyrights in the various works that can be part of a video game depends on who created the work. A developer should always try to own all rights in a finished game, but, notwithstanding verbal discussions between a team of people who are working on game, that is not an automatic result in case there are any differences in agreement or intention. The following could, conceivably, all own a slice of the relevant rights:
1. Anyone who writes an original part of the source code in the computer program, creates original artwork for the game, writes original music for the game and who is not employed to do so or who has not agreed to transfer his/her rights to the developer.
2. The entity from which the game engine or parts of code are licensed in, for use in the game.
3. The entity which owns rights in the underlying franchise, if applicable.
Apart from a variety of people owning rights, a developer also needs to be aware of the use of open source software, which is prevalent in many middleware products. Use of open source software can, depending on the licence terms that apply, mean that it is not possible to restrict the downstream licensing of software which was written using the open source software.