Nagy - legal aspects of new technologies

There is no single recipe for success in the video game market, but some causes of problems at the distribution stage are clear. In this article, we take a cultural and historical look at the content of games. These aspects may force the producer to introduce changes in such areas as quests or a character’s appearance or “skin.” It is not always enough to meticulously analyse the game content for intellectual property issues. Sometimes it will be better to abandon some content ideas or even create several versions of a game, adapting the content to the market where the game is to be distributed.

Protected symbolism

Some international or national symbols are subject to special protection.

The sign of the Red Cross, familiar to all, is a symbol of humanitarian aid, protected by international law and the national law of many countries. Contrary to general belief, it is not part of the public domain; it cannot be used by anyone in any way. The rules for use of the Red Cross symbol are strictly defined in the Geneva Conventions, and improper use not only violates the law but, above all, distorts the meaning of the sign, deepening the perception that it can be used freely, which detracts from its value.

In our series we have addressed the issue of protecting a video game against cloning in the context of lack of legal protection for an idea for a game. In this article, we will take a broader look at this problem.

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).

Is the creativity of video game developers limited by architects’ rights to the image of their buildings erected in public space?

Creators of video games often set the action of their games in spaces modelled on the real world or using well-known buildings and other structures existing in public space. Locations used in video games often gain popularity, and for many fans become a tourist destination in their own right (witness the growing interest in visiting Lower Silesia due to the popularity of The Vanishing of Ethan Carter).

Thus it is essential for creators and publishers of video games to determine whether the use of recognisable locations in games is limited in some way by the law, and if so, what requirements must be met to allow features of the built environment to be used in a game.