Posted on Categories creative industry

Legal aspects of the video game industry 2.0

Interest in the game development industry is not diminishing. The upward trend has been consistent for several years, and 2021 is sure to bring a further increase. Forecasts indicate that in 2023 the value of the game market will exceed USD 200 billion.

The Warsaw Stock Exchange has strengthened its position as the world leader in the number of listed companies from the game development industry, even ahead of the stock exchanges in Japan and South Korea. The game market is becoming an increasingly promising area for investors, which can be seen in both the number and value of transactions. The segments of mobile games, distribution under a subscription model, and cloud gaming are gaining. At the same time, with so many titles available on the market, game marketing becomes more difficult and skilful community-building around a specific title becomes vital.

Recognising the importance of the game industry, last year we published the report “Law for game development,” which deals with specific legal issues in the production and publication of games. However, new legal challenges are emerging that must be faced by all stakeholders in the broader game industry. Therefore, we are starting another series of publications in which we will touch upon, among other topics, intellectual property law, labour law, personal data, and less-obvious aspects of criminal or regulatory law. We will also devote a lot of space to commercial issues that can be useful for game developers and investors alike.

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Posted on Categories creative industry

Likenesses in computer games: Real-life people

Sometimes, a character in a game evokes an association with a real person. This similarity may be intentional or accidental. To ensure they are on solid legal ground, game developers should obtain the consent of the actual person to use his or her image. Failure to do so can result in severe consequences. In this text, we will discuss the rules for using likenesses of real, living people.

What is a likeness?

A person’s likeness refers to someone’s image, recorded for example in a drawing, painting or photograph, as well as the way a person is perceived and portrayed. Contrary to popular belief, likeness does not refer only to an image of a person’s face. It encompasses a range of personal characteristics, including natural features (e.g. eye shape), elements of characterisation or clothing (e.g. glasses, hairstyle, makeup, accessories), and even voice, deportment, behaviour, gestures or characteristic sayings. Thus, the likeness of a person is constructed of his or her recognisable features, by which we distinguish this person from others. Do you recognise the people pictured below? Just in case, the answer is given in the footnote1.

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Posted on Categories data economy

Data sharing in the light of competition law

Sharing, exchanging or jointly collecting data may be valuable for the businesses involved and for the development of a given industry sector, technological innovation, and, as a result, consumers. Indeed, data are of fundamental importance for the development of the digital economy, either alone or as a basis for functioning of artificial intelligence. Hence, the competitiveness of companies on the market depends on access to relevant data.

Issues related to access to data have been addressed, among other places, in the “Competition policy for the digital era” adopted by the European Commission. This policy notes that discussions between undertakings on data sharing cannot be conducted in isolation from the nature and type of data, how it is used, and the specifics of the market in question.

Businesses holding certain data may find it risky or not economically justifiable to share it at all. They may fear the loss of competitive advantage, wrongful appropriation of the data, or use of the data in breach of contract. There may also be concerns about possibly violating competition law. The latter concern is also recognised in a Commission document, the “European data strategy.” It highlights the need to update the Commission guidelines on horizontal cooperation, so that the Commission provides additional guidance on the compliance of data-sharing and -merging arrangements with EU competition law.

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Posted on Categories data economy

Re-use of public sector information

The activity of public sector entities often involves generation and use of extensive sets of data. These datasets serve to perform public tasks, but often have measurable economic value. Here we will examine the rules under which entities from outside the public sector can gain access to data of this type and use them to create new products and services.

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Posted on Categories data economy

The data economy and trade secrets

In previous articles in our series we discussed whether data can be subject to property rights or can be protected within known categories of intangibles. Today we will consider if and when data can be protected as a trade secret.

First we should clarify what a trade secret is and what protection this classification provides.

Trade secrets: When is protection provided?

Under Polish law, issues relating to the protection of trade secrets are mainly regulated by the Unfair Competition Act of 16 April 1993. At the European level, the Trade Secrets Directive (2016/943) has harmonised the protection of trade secrets to some extent.

The subject of the discussion below will be “trade secrets” (tajemnica przedsiębiorstwa), and not “business confidentiality” (tajemnica przedsiębiorcy) as referred to in Art. 5(2) of the Act on Access to Public Information of 6 September 2001. Judgments issued under that act indicate that in certain situations “business confidentiality” may be understood more broadly than “trade secrets” within the meaning of the Unfair Competition Act, and also includes information which has no economic value as such but the disclosure of which could have a significant impact on the undertaking’s economic situation and competitiveness (Supreme Administrative Court judgments of 17 January 2020, case no. I OSK 3514/18, and 5 July 2013, case no. I OSK 511/13).

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