Introduction
In the bustling world of game development, creativity often takes centre stage as developers strive to innovate and captivate players with unique gameplay experiences. However, behind the scenes, there's a quieter battle brewing—a battle over the cloning of games and the ethical and legal implications surrounding intellectual property rights.
Games such as PUB-G (Player Unknown's BattleGrounds), Call of Duty, and Valorant have been dominating the Indian gaming industry for a long time. Following the Indian government's recent ban on PUBG, various alternatives including BGMI, FAU-G (Fearless and United Guards) and Fortnite, quickly emerged to fill the void in the market. While developers meticulously try protect their in-game components against intellectual property infringements, the issue of game cloning presents a significant challenge to the protection of such property.
Though some clones improve upon their predecessors and gain market acceptance, this practice often infringes on IP rights, undermining the original creators' efforts and discouraging innovation. This blog delves into the complexities of game cloning, examining the legal grey areas, the impact on the industry, and the measures developers can take to protect their creations.
What is Game Cloning?
A game usually encapsulates the protectable "expression of the idea" and the unprotectable "idea" of the video-game called the gameplay. This part is the combination of game mechanics, objectives, rules, rewards, challenges, and penalties employed in a specific videogame, which is manifested through the audiovisual displays generated during player interaction1. The term, game cloning refers to "video games that copy salient aspects of other games' mechanics, graphics, or stories in order to piggyback on their financial successes"2.
These indie apps avoid duplicating the protectable components of a game, such as the frames, sounds, or computer code. Instead, they replicate the gameplay, which has been determined by the courts to fall outside the bounds of copyright protection. As the game development duration increases, not only is there a decrease in the useful time of the game but also, an increase in ease of copying games. This influx of copycat games in the mobile space brings with it new legal questions- 'Are these clones merely off-brand digital replicas or are they blatantly theft without any legal discourse?'3
Gaming and IPR: The grey areas?
'Intellectual Property Rights (IPR)' are legal mechanisms designed to safeguard the creations of the mind, providing creators exclusive rights to utilize and disseminate their works. The 'Berne Convention for the Protection of Literary and Artistic Works', was an international assembly held in 1886, for the adoption of a set of legal principles for the protection of original work. The convention takes measures to protect all kinds of works in the literary, artistic and scientific fields4. Video games meeting the criteria of "an original intellectual creation" fall under the regulatory purview of the convention5.
Historically, video games have been safeguarded through both copyrights and patents. However, with the advent of the gaming culture, a wide range of intellectual property rights can be claimed to safeguard a game's unique components.
Copyright
'Determining the exact scope of copyright protection for a given work requires drawing a line between the expressive elements of the work, which can be protected, and the underlying ideas in the work, which cannot be'6. Copyright protection for video games generally manifests in two ways: safeguarding the 'code as a literary work' and protecting the 'game as an audiovisual creation'7. The doctrine of Scène À Faire distinguishes copyrightable material from those which cannot be copyrighted. While audiovisual display, such as graphics, music, and sound effects and the source code are protected, the current copyright laws remain silent on the gameplay mechanics of the game itself.
-Patents
Patents protect the functional and technical aspects of video games, such as novel gameplay mechanics, unique algorithms, and innovative software features. It is essential to determine that a computer program per se, is not eligible for patent protection. Nevertheless, if a connection can be established with the ancillary hardware components, a patent may be granted8. In Mattel Inc. v. Mr. Jayant Agarwalla9, It was held that 'rules and schemes for gameplay are not eligible for protection under the Patent's Act'.
-Trademark
Trademarks protect brand identity, including game titles, logos, character names, and other branding elements. In India, trademark protection is dealt under the Trademarks Act, 1999. In the gaming industry, trademarks can be used descriptively or by individuals in relation to goods modified to serve as accessories, provided it is 'reasonably necessary' to indicate the compatibility of the obtained goods with those of the market10.
-Industrial Design
The Designs Act, 2000 safeguards the visual aspects of games, including their visual interfaces and game covers. The design of a game incorporates the graphic characters, colours, animation and other creative aspects of the game.
Game Cloning- The violations?
The paradigms of both customers and developers in the video game industry are somewhat ambiguous. On one hand, they oppose unethical developers who engage in game cloning. On the other hand, they value the effort, creativity, and originality in game clones, particularly when these clones surpass the quality of the originals.
By replicating protected elements of original games without authorization, cloners infringe various intellectual property rights (IPR) reserved for the developers of the game. This often involves copyright infringement, where cloners copy unique game aspects such as artwork, music, character designs, and gameplay mechanics. The Delhi High Court in, Sony Computer Entertainment Europe Ltd. v. Harmeet Singh and Ors.11, granted an ex-parte injunction for 'illegal distribution of cloned and unlicensed video games.'
Trademark infringement occurs when cloned games use similar titles, logos, or branding, causing consumer confusion and unfairly benefiting from the original game's reputation. For instance, the Delhi High Court recently granted trademark protection to "Dream11" owner who had a bought a suit against a cloned version "Dreamz11"12. Similarly, patent infringement can arise if a cloned game incorporates patented technologies or methods without permission. These infringements not only harm the original creators by violating their exclusive rights and financial interests but also disrupt the market, discouraging innovation and fostering unfair competition13.
However, there have been instances where cloned games have surpassed the originals in quality. Games like "Saints Row," "King of Fighters," and "Pro Evolution Soccer" are examples of such imitations. Despite their origins, these games have undergone changes and innovations that help them avoid the stigma of being mere clones. In fact, they often match or even exceed the quality of the original versions14.
The standard of gameplay is ultimately determined by the developer's level of creativity. A game does not need to be entirely different from its predecessor to be successful. Enhancing an existing game and providing it with additional advantages to attract more customers is a demonstration of creativity, not just imitation. Such qualities lead customers to appreciate both the ethically cloning developers and the original creators. For instance, clone of 'Diablo' outperformed the original version of the game. Nevertheless, it is crucial to note that in the gaming industry, cloning remains problematic. It discourages innovation and jeopardizes the creative efforts necessary for developing new and original games.
Conclusion and Way Forward
In this fiercely competitive gaming industry, companies must stay attuned to gamers' expectations to survive. However, that should not come at the cost of depriving developers of their well-deserved intellectual property protection. The IP laws, encompassing copyrights, patents, and trademarks, safeguard games from conception to completion. Without this protection, the gaming industry would falter, as innovation and creativity would be curtailed. Discouraging game cloning is essential to maintain a fair market, ensuring that original creators receive due recognition and rewards, thus fostering a vibrant, dynamic gaming landscape.
With the infringement risks in mind, few steps can be undertaken by developers to protect their games from being cloned15. These include:
- Including greater protections in the Non-disclosure Agreement (NDA) pertaining to disclosure of confidential data with potential partners. Copying in respect to the game's unique components should be clearly defined and clause specific to remedies in case the game gets cloned should be incorporated.
- Registering IP to have a more robust legal standing in the event of an infringement.
- Patenting of the specific-in-game elements whichever possible.
- Dismantling the source code to avoid reverse engineering16.
Footnotes
1. Susan Corbett, 'Videogames and their clones: How copyright law might address the problem'? Com. Law & Sec. Rev. (2016).
2. Drew S. Dean, 'Hitting Reset: Devising New Video Game Copyright Regime', U. Pa. L. Rev., 1239-1280 (2016).
3. Ben Hur and Michelle Ybarra, 'When Clones Attack: How to Protect Social/Mobile Games from Copying', Keker & Van Nest LLP (2012).
4. Berne Convention for the Protection of Literary and Artistic Work, Art. 2.
5. Philip J. Weiser, 'The Internet, Innovation and Intellectual Property Policy', 103 Col. L. Rev. 534-613 (2003).
6. Baker v. Selden, 101 U.S. 99, 103 (1879).
7. Nicholas M. Lampros, 'Leveling Pains: Clone Gaming and the Changing Dynamics of an Industry', 28 Berkeley Tech L.J. 743 (2013).
8. The Patents Act, 1970 § 3(k), No. 39, Acts of Parliament, 1970 (India).
9. Mattel Inc. v. Mr. Jayant Agarwalla, 2008 (153) DLT 548.
10. The Trade Marks Act, 1999 § 30(2)(d), No. 47, Acts of Parliament, 1999 (India)
11. Sony Computer Entertainment Europe Ltd. v. Harmeet Singh and Ors., CS(OS) 1725/2012.
12. LiveLaw, www.livelaw.in (last visited May 17, 2024)
13. F. Gregory Lastowka and Dan Hunter, 'The Laws of the Virtual Worlds', 92 Cal. L. Rev. 1, 1-73 (2004).
14. Ryan Susanto, 'Customer and Developer's Point of Views to Game Cloning', 1 Sisforma 2 (2014).
15. Supra Note 3.
16. Pamela Samuelson and Suzanne Scotchmer, 'The Law and Economics of Reverse Engineering', 111 Yale L. J. 7, 1575-1663 (2002).
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