Copyright—what can be protected?

A video game
comprises numerous, varied elements, such as graphics, music,
narrative, software, and the graphical user interface. The debate under
copyright law on how to protect a video game (as a computer program,
each element as a separate work, or combined as a multimedia work) does
not appear to be definitively resolved. But it seems most important in
practice to determine whether a given element of the game constitutes a
work, i.e. a creative, individual product of human activity. Any
manifestation of creativity of an individual nature, fixed in any form,
can be the subject of protection, regardless of its value, intended use,
or method of expression.

Thus, in a game, copyright protection may extend for example to:

• Appearance
  of characters, worlds and objects (weapons, costumes, obstacles etc),
  architecture of towns and other locations, and so on
• Music
• Software.

Registration
is not required to obtain copyright protection. Generally speaking,
copyright protection expires 70 years after the death of the creator of
the work. It should be borne in mind that an idea alone is not subject
to copyright protection.

Industrial design to protect appearance—but is it always available?

The
appearance of a product or parts of a product may be protected by an
industrial design. As a rule, an industrial design protects the
external, observable form of a product. This might include, for example,
the particular appearance, shape, contours, ornamentation, structure,
or specific external features of the material (see judgment of the
Polish Supreme Administrative Court of 7 July 2017, case no. II GSK
3072/15). Protection on the basis of industrial design is used across
many industries for a wide range of products.

In
video games, an industrial design might protect for example the
appearance of a character in the game, the appearance of the gaming
devices, or the graphical user interface.

For
a design to be protected, it must be novel (i.e. not previously made
available to the public) and must have an individual character, which
means that the overall impression it produces on an informed user
differs from the overall impression produced on such a user by a design
previously made available to the public.

If a design meet the
conditions for protection, it may obtain national protection (e.g. in
Poland or China), EU protection (in the European Union a design may be
registered with EUIPO and obtain protection in all member states), or
international protection.

It should be borne in mind that like
other intellectual property rights, an industrial design provides
protection limited exclusively to a given territory. An industrial
design will be protected where it is registered, and thus registration
in China or the US will not provide any protection in Poland.

An
industrial design is a temporary right, as protection is given for a
definite period—in Poland, 25 years. At the end of this period, the
design ceases to be protected and enters the public domain, which means
that anyone can use it in any manner, commercial or not.

Although
it is easy to register a design, the effectiveness of the protection
depends on what the applicant seeks to protect. If the registration is
not well-targeted, the design may prove to be little more than art for
art’s sake, formally augmenting the game development studio’s assets but
not necessarily securing them against infringement.

Patent for a game invention

Regardless
of the industry, obtaining a patent for an invention is neither easy
nor fast, as fulfilling the conditions for patent protection poses a
significant organisational, legal and financial challenge. But examples from the Polish market
show that it is possible to obtain patents for inventions in the game
industry, which is encouraging and provides hope for an increase in the
number of patents issued in this industry.

When deciding to seek patent protection, it should be borne in mind that to obtain protection, the invention must:

• Have a technical nature
• Be novel
• Possess an inventive dimension
• Be suitable for industrial application.

Each
of these requirements is separate and independent, and they must all be
fulfilled for a solution to be eligible for patent protection (judgment
of the Province Administrative Court in Warsaw of 8 March 2017, case
no. VI SA/Wa 1554/16).

A method of operation or production may
also constitute an invention. For example, in the US, Bloober Team SA
obtained a patent for an invention called “Method of simultaneous playing in single-player video games.”

According
to the description, the key feature of the invention is a method for a
single player to function in multiple virtual realities at the same time
by simultaneously controlling avatars for more than one character.

An invention might also be for example:

• A device
• A chemical composition
• An application (e.g. of a substance) to achieve a certain purpose.

However,
schemata, rules and methods for conducting intellectual processes, game
play, and computer programs are not regarded as inventions. Thus
generally the rules of a game cannot be patented. But it cannot be
excluded that the method of applying the rules of a game may fulfil the
conditions for patent protection, as demonstrated by the case of Nintendo. Nintendo applied to the European Patent Office for protection
of an invention entitled “Game machine and storage medium therefor,”
which essentially involved a game (in this case, the example given was Pokémon),
in which the player moves around a map, encountering various
characters, which arise according an “appearance probability” (differing
from character to character).

Application no. EP 00116115.7

In
the game, the “appearance probability” of a given character would vary
over time, which increased the unpredictability of these encounters and
of the game itself. Initially a patent for the invention was denied
because of the ban on patenting game rules. But in considering an
appeal, the Technical Board of Appeal at EPO held in 2009 that the
essence of the invention was not so much concerned with a game rule per
se, as the particular manner in which the rule is realised, namely the
way events are generated in the game. The board found that the other
prerequisites for patent protection were also met, and thus issuance of a
patent was warranted.

A patent is a right that gives exclusivity
in the use of the patented invention, an innovative solution of a
technical nature. Patent protection is also territorial, and in Poland
it lasts 20 years.

Trade secret

In some instances
it is more advantageous not to seek formal protection of certain aspects
or elements of a game. After all, when applying for a patent, for
example, the applicant must disclose the essence of the invention, and
thus anyone can examine the solution and after the end of the patent
protection period can freely use the solution in their own business.

Sometimes
certain elements of a video game do not fulfil the conditions for
protection under copyright or industrial property law. In that
situation, it should be considered whether the prerequisites are met for
regarding these creations as a trade secret for purposes of the Unfair
Competition Act (see the article “Harder to protect trade secrets in commercial relations”).
Essentially, information or data, organisational or commercial,
technical or non-technical, can be a trade secret so long as it remains a
secret—confidentiality is a key condition for legal protection. Thus it
is essential to take appropriate steps and introduce adequate security
measures to maintain the confidentially of commercially valuable
information. A typical example is the recipe for Coca-Cola. The various
measures supposedly employed to protect access to the formula are the
stuff of legend. Trade secrets are generally protected indefinitely (as
long as they remain confidential). Moreover, there is no obligation to
register trade secrets.

Selection of the method of protection is
an important and difficult decision which may pay off only in the
future. Thus the decision should be carefully considered and consulted
with a specialist.

Dr Monika A. Górska