In this short article we will review the intellectual property rights that may protect computer games; What is the scope of protection that each right grants and what actions must be taken in order to gain protection.
The first computer games were created already in the 1940s, when scientists in the field of computer science began to design games and characters for research and personal enjoyment. Although first created decades earlier, computer games only began to gain momentum in the 1970s.
Today, computer games have become one of the most common means of entertainment in the world and close to a third of the world’s population plays computer games.
In 2019, the computer game industry generated 150 billion dollars, with the US and China responsible for 48% of the profits. The computer game market is a very competitive market and computer game companies have to reinvent themselves every year.
In light of the great economic importance, the question arises, how can a computer game company protect the computer games it develops through intellectual property laws?
Copyright protection of computer games
The copyright law in Israel and similarly the copyright laws in most countries of the world, protect five types of works – literary works, artistic works, dramatic works and musical works and records. The legislation in the USA and the legislation used in Europe allow recognition not only of works within the categories defined by law, but also recognition of completely new categories of works. In contrast, Israeli law requires that the work fall into one of the categories defined by law. As a result of comparative law and the ruling tradition in copyright law, When there is a need to recognize a new work, a court will interpret the definitions of the types of works broadly, and thus be able to recognize such works.
In particular, copyright law protects computer software as a literary work. The law defines computer software as “computer software in any form”. Software protection applies to all types of software, including computer games. The artistic aspects of the software, for example the screens it creates, may be protected as an artistic work. Changing screens that create moving images may be considered cinematic works under the law and comparative law.
For example, in the case of “Harpaz v. Ahitov”, the Supreme Court ruled that copyright protection for computer software exists in all stages of the development of the software – the requirements definition stage, the software design stage and the programming stage. It was also ruled that the protection of the software does not exist only on the literal code of the software, but is also granted to the form, structure, user input, order and organization of the software.
Copyright protection was also applied to the “look and feel” component. This component consists of the screens, the visual user interfaces, the menus, the texts and the graphic elements. The protection of this component is important for the protection of computer and video games, in which the design of the screens is sometimes the unique part of the software.
According to the case law and the literature, in order for a work to be protected by copyright, it must be original. In order for a work to be protected by copyright, the creator is not required to prove that his work has real artistic value, but he must prove that his work is the fruit of his labor and that he invested effort and originality in the work. Generally, the invention and creation of computer and video games involve investment, labor, and originality, and therefore there is a place to grant copyright protection to computer and video games.
However, a fundamental rule of copyright is that there is no protection for the idea and protection is only given to the ways of expression of the work.
What is the scope of the monopoly granted by copyright in relation to a computer game?
In order to understand what the monopoly that grants copyright in a computer game is, it is necessary to understand what a copyright infringement is.
According to Section 11 of the Copyright Law, “the copyright of a creator in a work is the exclusive right to perform one or more actions in the work, or in a substantial part of it, as detailed below, depending on the type of work”.
According to Section 47(a) of the Copyright Law, “Whoever performs an action in a work from the actions listed in Section 11, or authorizes another to perform such an action, without the permission of the copyright owner, violates the copyright, unless the action is permitted according to the provisions of Chapter 4 “.
Another form of infringement is detailed in Section 48(a) of the Copyright Law: “Whoever does one of these actions with an infringing copy of a work, infringes the copyright, if at the time of performing the action, he knew or should have known that the copy is an infringing copy: (1) Sale or Rental, including an offer or position for sale or rent; (2) Possession for a business purpose; (3) Distribution on a commercial scale; (4) Presentation to the public in a commercial way; (5) Importation into Israel other than for personal use as defined in section 129 of the Customs Ordinance.”
In other words, copyright law distinguishes between primary infringement and secondary infringement. Primary infringement is an action that constitutes the exploitation of copyright in a manner reserved exclusively for its owner. Performing one or more of the actions listed in Section 1 of the Copyright Law, without the consent of the copyright owner, constitutes a violation according to Section 2(1) of the Copyright Law. Such a violation does not require proof of any mental basis, that is, it is not required to prove knowledge that the act violates. Secondary infringement is trading in infringing copies of works protected by copyright. When it comes to a secondary infringement of copyright, there is an infringement only when it involves infringing copies, and when the defendant knew that they were infringing. Knowledge includes both actual knowledge and “closing one’s eyes” from seeing the visible reality and the facts on the surface.
Exception: Copyright does not protect a work if a design can be registered
In Israel and in many countries around the world, copyright will not protect elements of a computer game that can be registered as design, and in particular, icons and screen displays will not be protected.
Specifically, the French version holds that there is room for a parallel application (cumulative protection) of copyright laws and design laws on industrial design. In this way, according to French law, a specific infringer can be sued both for copyright infringement and for infringement of a registered design.
The European directive presents a different approach according to which there can be cumulative and alternative application of the legal systems of models and designs and copyrights, in which the rights are cumulative, but the protection is alternative or limited.
Whereas in the USA, Canada, Israel and most of the world there is an explicit exclusion of copyright in relation to a registered design. In other words, these two laws are supposed to operate in a complementary manner and not in an overlapping manner.
In other words, the rule in Israel is that a computer game cannot receive double protection under both the copyright law and the design law, and if parts of a computer game deserve to be registered as a design, they will not receive copyright protection.
In summary: copyright laws apply to computer and video games. In order for the computer or video game to receive copyright protection, they must be original. The threshold for copyright protection is low – if the origin of the game is the creator himself and the creator invested effort and work in creating the game, that is enough for the game to meet the requirement of originality.
Therefore, copyright laws provide protection for the following elements in a computer game:
1. Source code;
2. Illustrations and designs integrated into the game;
3. Music integrated into the game;
4. Texts integrated into the game.
Computer game trademark protection
Trademark protection is usually the most common way to protect computer games.
What is the purpose of the trademark?: Trademarks are intended to be used to identify the origin of the game manufacturer and to differentiate between a game of one manufacturer and a game of another manufacturer in the market and therefore, a registered trademark can protect, in the country where the mark is registered, the name of the game, the logo of the game and Company Name.
In other words, the purpose of protecting of a trademark is to prevent a competitor from using my mark or a mark similar to it to the extent of misleading.
What is the protection period?: No time limit – as long as renewal fees are paid.
How to protect?: To protect a trademark we must register the trademark in the countries where we want to operate and the mark must be unique (of a distinctive nature) in the same territory where we request the registration.
How much does it cost?: See the article below.
What is the registration process?: See article below.
What do you register?: It is recommended to register as a trademark for several elements of the game and they are:
1. The name of the game (word trademark)
For example, the company PLAYTIKA registered the name of the game SILVER LION in the USA (trademark number 86543269).
2. The logo of the game (designed trademark)
For example, the company PLAYTIKA registered the SILVER LION logo in the USA (trademark application number 90165337).
3. Company name (word trademark)
For example, the company PLAYTIKA registered the name PLAYTIKA in the USA (trademark number 4407474).
4. Company logo (designed trademark)
For example, the PLAYTIKA company registered the 86320498 logo in the USA (trademark number 86320498).
5. Famous in-game elements used as a trademark by themselves (designed trademark)
For example, PLAYTIKA is the owner of trademarks related to the elements of the Sevilla FC game. For example, the character LUCY:
In conclusion, computer game trademark protection is generally the most common protection as a registered right in the field of computer games. This protection is intended to protect the reputation that a company gains in the game and this is mainly to prevent misleading the public.
Design law protection of a computer game
The best way to protect aesthetic (as opposed to functional) design components in a computer game is through design registration.
Specifically, the design law in Israel (and in most of the world), allows the registration of designs in relation to screen displays and icons of computer games.
What is the purpose of a registered design (Design patent)?: A registered design protects the aesthetic design of the game and this only in the country where the design was registered.
In other words, the purpose of the protection is to prevent a competitor from using my design or a design similar to it to the point of being misleading.
Protection period: 25 years from the filing date (in Israel) – as long as renewal fees are paid. In most countries of the world, the protection ranges from 20 to 25 years.
In addition, the Designs Law also provides a framework of protection for unregistered designs, however this protection is limited to a period of three years from the date of publication.
How to protect?: To protect a design, we must register the design in the countries where we want to operate and the design must be new and original in a worldwide examination.
When do we defend?: Before publishing the game in public – it will be made clear that if we publish the game before submission, the publication will be considered a prior self-publishing, negating the validity of the design for registration.
Exception: In the Designs Law in Israel and in the law in the USA, there is a possibility to register a design that was previously published before its registration by the right holder, provided that the publication was made within 12 months before the date of submitting the application for registration.
How much does it cost?: The design registration procedure is a relatively cheap procedure that costs several thousand shekels for each country (depending on the country for registration).
What is the registration process?: See article below.
What do you file?: It is recommended to file screen displays and icons integrated into the computer game.
For example, the company LESSINGER GAMING LLC registered as a design in the USA (US D910,688 S) the screen view of the game below:
And KING.COM LTD has registered as a design in the USA (US D910,041 S) the screenshot of the game below:
For example, Apple Inc. Registered as a design in the USA (US D894,233 S) the icon below:
In summary, design protection for computer games is mainly focused on protecting icons and screen displays. In many countries in the world, the possibility of this protection negates the applicability of the protection provided by copyright law.
Protection of computer game patent law
Generally, registered patent protection is not an appropriate way to protect a computer game unless the computer game has a new technological idea.
A patent gives its owner the right to prevent anyone else from using the invention registered as a patent. When it comes to computer games, a patent will allow its owner to prevent anyone from marketing the game registered as a patent.
In order to get the protection of patent laws, the mechanics of computer and video games must be unique and unobvious, that is:
1. The mechanics of computer games were unknown and had not been used before.
2. The difference between the mechanics of the computer game and the mechanics of another computer game is not obvious to an average professional in the field of computer game programming.
What is the purpose of a registered patent?: A registered patent, in the country where it is registered, protects the technological idea that is the basis of the game.
That is, the purpose of the protection is to prevent a competitor from making use of the protected technological idea within the framework of the patent monopoly.
Protection period: 20 years – as long as renewal fees are paid.
In other words, registering the patent will grant its owner exclusivity (monopoly) for a period of 20 years, but identifying unique features of the computer game may be very difficult, and the costs of patent protection may prevent private individuals and small video game companies from protecting their patent.
How to protect?: To protect a patent, we must register the patent in the countries where we want to operate and the patent must be new and have real progress in a worldwide examination.
When do we file an application?: Before publishing the game in public – it will be made clear that if we publish the game before submission, the publication will be considered a prior self-publishing, negating the validity of the design for registration.
That is, patent laws may create traps for unwary computer game programmers. A computer game programmer may ask players to play a prototype version of the game in order to test the quality and nature of the game. Although such examination of the game can identify problems in the game design that may make the game less enjoyable for the players, such public disclosure of the game may prevent it from being registered as a patent.
Exception: In the US law, there is a possibility of registering a patent that was previously published before its registration by the right holder, provided that the publication was made within 12 months before the date of submitting the application for registration.
What do we file?: In a computer game you can protect only innovative and inventive technological elements.
The general idea underlying the game is usually not patentable.
How much does it cost?: See the article below.
What is the registration process?: See article below.
Examples of game patents:
Example A – a game that combines a gun and a target
For example, the HASBRO company registered as a patent in the USA (USD858640S1) a device that combines a gun and a target to facilitate a game of tag through infrared light communication and augmented reality with one or more players.
https://patentimages.storage.googleapis.com/d2/20/ec/6a96afd9f1b186/US8469824.pdf
Example B – a method and device that combines a physical game with a virtual game
For example, the HASBRO company registered as a patent in the USA (US9962615B2) a method and game system that creates an interaction between a computer program that creates a virtual arena and a physical game. The physical game transfers a unique identifier and digital data to the software and allows the player to play with the physical game within the virtual arena.
https://patentimages.storage.googleapis.com/41/57/75/224ebd5d6e7a51/US9962615.pdf
Epilogue
In conclusion, as a general rule, effective protection of computer games is in the creation of a mosaic of protection of various rights in the field of intellectual property, where each right protects a different element of the game.
In particular, the intellectual property laws in the field of computer games allow several channels to protect the computer game and they are:
1. Copyright laws – protect the source code, music, drawings, texts in the computer game.
2. Trademark laws – protect names and commercial logos used in the computer game. For example, on the name of the company, on the name of the game and famous elements in the game that are used as a trademark in themselves (see details above).
3. Design laws – protect aesthetic (as opposed to functional) designs in the computer game.
4. Patent laws – protect technological ideas that are expressed in the computer game.
