Master Thesis 2016 – 2017
Tilburg University Faculty of Law
LL.M. Law and Technology
Playing the game of video game classification Game Over for Europe?
Author: Stephan van der Velden ANR: 964836 Under the supervision of: Dr. C.M.K.C. Cuijpers
ABSTRACT
Over the last few decades the video game industry transformed into one of the fastest growing and most profitable entertainment industries in the world. The global video game market is estimated to generate US$99.6 billion in 2016. Despite this significant economic footprint in our society it is surprising to see no specific legislation has been established in relation to video games and intellectual property laws - more specifically copyright laws. This thesis shall dive into video game qualification within the European Copyright Framework with a dualistic goal – establishing where video games fall within our current European copyright framework and determine whether these video games are sufficiently protected within said framework. To reach the goals above, this thesis will analyze video games and its characteristics, study how a video game fits within the regimes of protection of computer programs and audiovisual works, assess the qualification methods for said regimes within Europe in relation to video games and briefly discuss an alternative tailor-made regime for video games. The aim of this thesis is to establish if and how video games are qualified within the European copyright framework and strives to provide an overview of potential issues that arise with such a qualification. Consequently, it should become apparent whether video games are in need of better protection within the European copyright framework. As such, the results of this thesis should provide some support for ongoing (legislative) debates on copyright protection of video games.
Keywords: video games, copyright, audiovisual works, computer programs, regimes of protection, distributive qualification, unitary qualification.
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FOREWORD
Player authorship and transformative use of video games was initially the main research question of this thesis. However, during the early research sessions it became apparent that the classification discussion of video games is still ongoing. Thus, it seems appropriate and effective to tackle video game classification before engaging in any research topic in relation to player authorship. The latter being a valid opportunity for further research.
After this longer than expected journey, and as tradition dictates, I would like to express my gratitude to several persons for their patience, support and guidance whilst writing this thesis.
Firstly, I would like to thank my supervisor Colette Cuijpers for her patience, helpful and extreme swift remarks and feedback, and allowing me in finalizing the topic I envisioned.
Secondly, I would like to thank my direct colleagues and my manager Christine FLOBERT- POLI at SAP for their support and for providing me with the necessary capacity to finalize this research.
Thirdly, a special appreciation to my girlfriend Eirini Tserepi for her relentless patience but unquestionable support during this process. She has ensured to keep me motivated during this process and assured finalization of the research.
I hope you enjoy your reading.
Stephan van der Velden
Utrecht, July 9, 2017
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ABBREVIATIONS
ECJ European Court of Justice
EU The European Union
FPS First Person Shooters
GUI Graphical User Interface
IPR Intellectual property right
PC Personal Computer
ROMS Microcircuit Chips
RPG Role Playing Games
TPS Third Person Shooters
TRIPS Trade Related Aspects of Intellectual Property Rights
USA United States of America
WCT WIPO Copyright Treaty
WIPO World Intellectual Property Organization
WTO World Trade Organization
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Table of Contents 1. Introduction ...... 6 1.1. Background ...... 6 1.2. Research questions ...... 8 1.3. Limitations ...... 9 1.4. Thesis Structure ...... 9 2. What is in the game? ...... 11 2.1. Introduction ...... 11 2.2. Video game characteristics ...... 11 2.3. The video game industry ...... 13 2.3.1. Categorizing video games ...... 13 2.4. Stakeholders within the gaming industry ...... 15 3. Copyright Framework ...... 17 3.1. Introduction ...... 17 3.2. Global copyright perspective ...... 18 3.3. Acquis Communautaire ...... 19 3.3.1. CPD ...... 20 3.3.2. InfoSoc ...... 21 3.4. Copyright elements and principles ...... 22 3.4.1. Rationale of copyright ...... 22 3.4.2. Ownership in Copyright...... 23 3.4.3. The scope of Copyright? ...... 23 3.4.4. Duration of protection ...... 25 3.4.5. Originality principle ...... 26 3.4.6. Copyright and related rights ...... 29 3.5. Conclusion ...... 30 4. Two regimes of protection...... 31 4.1. Introduction ...... 31 4.2. Audiovisual works...... 31 4.3. Computer programs ...... 34 4.4. The rules of audiovisual works ...... 36 4.5. The rules of computer programs ...... 39
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4.6. Conclusion ...... 40 5. Video games versus the regimes of protection ...... 41 5.1. Introduction ...... 41 5.2. Video games as computer programs? ...... 41 5.2.1. How do video games play with computer programs? ...... 42 5.3. Video games as Audiovisual Works? ...... 44 5.3.1. How do video games play with audiovisual works? ...... 45 5.4. Conclusion ...... 47 6. European qualification methods ...... 49 6.1. Introduction ...... 49 6.2. Unitary approach as Audiovisual or Computer Program ...... 49 6.3. Distributive classification of video games ...... 51 6.4. Conclusion ...... 53 7. A tailor-made regime for video games? ...... 54 7.1. Conclusion ...... 56 8. Conclusion ...... 57 9. References ...... 62 9.1. Books...... 62 9.2. Articles ...... 63 9.3. Websites...... 64 9.4. Other Publications ...... 65 9.5. EU Legislation ...... 65 9.6. Other Legislation ...... 65 9.7. Case law ...... 67
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1. Introduction
1.1. Background
From arcade to consoles and personal computers to an entire interactive multiplayer network, the primary catalyst behind the explosion in video games has been internet accessibility. This global system of interconnected internet protocol networks has contributed to this new and flourishing entertainment sector in a multitude of ways, such as downloading and updating software, tendering payments, and finding and interacting with other players online. Consequently, this new industry generates revenue consistently rivaling and even exceeding that of the current established music and movie industries.1
Over the last few decades the video game industry transformed into one of the fastest growing and most profitable entertainment industries in the world. Currently, the global video game market is estimated to generate US$99.6 billion in 2016, rivaling the film industry.2
A video game is usually defined as an electronic or computerized game, played by manipulating images on a video display or television screen.3 Nevertheless, video game historians acknowledge the lack of a proper univocal definition of video games.4 Consequently, there is no real consensus on the birthdate of the video game genre, and the different answers depend largely on how video games are defined.
Some video game historians point to physicist Willy Higginbotham’s game Tennis for Two, created on an early analog computer and oscilloscope at the Brookhaven National laboratory in Upton, New York 1958.5 Others refer to Spacewar!, an interactive video game created by MIT student Steve Russell using various systems at Boston’s MIT and made playable on a Digital PDP-1 mainframe computer in 1961.6 However, some scholars state that Atari’s Pong
1 A. Kerr, The Business and Culture of Digital Games: Gamework and Gameplay, (National University of Ireland 2006) 47-52. 2 Venturebeat, ‘Mobile growth will fuel global game market that hits $86.1B by 2016’
6 in 1972 launched the cabinet arcade game industry, and thus should be considered as the origin of the video game genre.7 Others are of opinion that the release of Ralph Bear’s Magnavox Oddyssey in 1972 marked the beginning of household video games and, as such, Ralph Bear should be addressed as the father of video gaming.8
These early creations could all be considered as the origin of video gaming, it merely depends on the definition used for a video game. For example, Higginbotham’s game Tennis for Two could qualify as the first video game if a definition stipulates that a video game must consist of any form of electronic and interactive graphical amusement.9 If a definition requires a consumer product connecting to a display screen, the Magnavox Oddyssey might be considered as the origin of the video game genre. Yet, if video games are defined by computer-based entertainment technologies and a multitude of fans, Steve Russell’s Spacewar! would be the start of this interactive medium.10
Conclusively, it is very difficult to ascertain the real birthdate and origin of the video game genre; mainly due to the uncertainty concerning how a video game should be properly defined.11 But however they are defined, video games, as a product, have become an entertainment commodity of epic proportions and account for a significant segment of today’s media landscape.
Video games are one of the most impressive meeting points where technology, copyright law, participatory culture and proprietary rules have been facing recently. Although the majoritarian trend considers that software is the prevailing element of video games, many scholars believe that various audiovisual and literary elements should also be considered as distinguishing elements of a video game.12 Furthermore, at an international level, although the Agreement on Trade Related Aspects of Intellectual Property Rights (hereafter “TRIPS”)13
7 See for example, W.K. Ford, ‘Copy Game for High Score: The First Video Game Lawsuit’ (2013) 20 JIPLP. 8 Infoplease, ‘Timeline: Video Games’
7 and the World Intellectual Property Organization (WIPO) Copyright Treaty (hereafter “WCT”)14 include references to software and audiovisual creations, multilateral treaties provide little specific guidance with regard to the protection of video games.15
1.2. Research questions
As discussed above, video games are complex creations, composed by multiple creative elements which all deserve legal protection.16 It follows that a wide variety of issues related to video games falls within this picture. However, this thesis will focus on the discussion concerning the classification of video games within Europe. The WIPO decided to research the current legal status of video games within a variety of jurisdictions in the world within the field of copyright and tried to raise awareness on this topic.17 This research of the WIPO depicts a lack of clear and definitive answers regarding the legal qualification questions of video games within the existing European and the international copyright Framework – there is no harmonized or even tailored qualification of video games in any copyright regime. To contribute to this discussion, the main research question is as follows:
‘Where do video games fall within the European copyright framework and are such works sufficiently protected?’
The difficulty of this topic of discussion and the research question lead to multiple sub- questions that need to be analyzed, to be able to give a coherent answer to the main research question. These sub-questions are as follows:
1. What amounts to a video game and what are the involved stakeholders of the video game industry?
2. What is the relevant regulatory European framework with regard to copyright?
14 WIPO Copyright Treaty (adopted 20 December 1996, entered into force 6 March 2002) TRT/WCT/001 [hereafter “WIPO Copyright Treaty”]. 15 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 93. 16 Ibid. 17 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO.
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3. How should a video game be classified within the existing regimes of protection of audiovisual works and computer programs and does any classification within these regimes raise specific issues in relation to video games?
4. How do video games fit with these respective regimes of protection of audiovisual works and computer programs and how is this recognized by Europe?
5. Would a tailor-made regime be recommended?
1.3. Limitations
The following limitations apply to this thesis:
1) The regime of Databases will not be addressed and falls outside of the scope of this research. The focus will be on the regimes of audiovisual works and computer programs.
2) This research shall not provide a comparative analysis between applicable copyright laws of Member States. This research will only make some references to the national copyright laws with respect to audiovisual works and computer programs of The Netherlands and Belgium. This to only demonstrate the repercussions of the applicability of these regimes to specific works.
1.4. Thesis Structure
Chapter 2 will provide an overview of what amounts to a video game. This chapter will specifically address the multitude of elements that are enshrined within a video game and set-out a concise overview of relevant stakeholders within the gaming industry. In short, this chapter is to answer sub-question 1.
Chapter 3 will discuss the current European regulatory framework regarding copyright protection. This section will delve into the applicable acquis communautaire and address the
9 essential elements of copyright itself; including the principle of originality, rationale, related rights, duration of protection, ownership and the scope. In other words, this chapter will partially answer sub-question 2 where chapter 4 will complement this section with a detailed analysis of the regimes of protection of audiovisual works and computer programs.
Although still an integral part of the general European regulatory framework regarding copyright protection, this chapter 4 will specifically focus on the regimes of protection of audiovisual works and computer programs. Therefore, this section will set-out the general European legislative framework of audiovisual works and computer programs. Whereas it is essential to shortly address some of the specific rights and authorship connected to these two regimes of protection individually; where specific national provisions will be used of The Netherlands and Belgium. In a nutshell, this chapter will partially answer sub-question 2.
Chapter 5 shall assess video games within the existing regimes of protection of computer programs and audiovisual works as set-out in chapter 4. This section shall address any potential issues arising in connection to such video game classification. This chapter will answer sub-question 3.
Chapter 6 will address the unitary and distributive qualification of the regimes as set-out in the previous chapters in relation to video games. It shall highlight potential issues with each qualification approach and verify which approach would be a better fit for video games. In short, this chapter will answer sub-question 4.
Chapter 7 will go into the possibility of a specific tailor-made regime for video games. In other words, this chapter will answer sub-question 5.
Lastly, in chapter 8 conclusions will be drawn.
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2. What is in the game?
2.1. Introduction
In order adequately assess and discuss the effects of video games on the European regulatory framework with regard to copyright, it is of utmost importance to become familiar with the terminology and industry related to this new form of digital entertainment. Therefore, this chapter will start by setting out the general features of a video game, and will address the divergence between video games and more traditional forms of authorship. This chapter continues by providing a general overview of the current video game industry, including the major players and publishers.
2.2. Video game characteristics
Many scholars have drawn out the formal characteristics of a video game. However, the first individuals theorizing and debating collectively about the exclusive nature of video games were video game developers themselves. Video game developer Chris Crawford theorized, that the key appeal and aesthetic potential of early video games could be found in their ability to combine player participation with representational media. According to Crawford, “the highest and most complete form of representation is interactive representation. Games provide this interactive element, and it is a crucial factor in their appeal.”18 A video game turns a merely passive consumer in an active player, and accommodates multiple paths of play where the player has a chance to influence the direction of the game itself. Furthermore, many games allow the player to become a content creator by providing specific tools which facilitate this sort of user creativity.19
Moreover, video game development has evolved rapidly along with the developments of digital technology and brought unprecedented growth in the video game industry. Early video games in the 1960 – such as Spacewar! – only amounted to a rather archaic graphical format; shortly followed by the incorporation of rudimentary sounds. The continual evolution of video games over the past 50 years, led to the most recent iteration of video game development – the modern video game. Nowadays, video games are extremely complex works of authorship;
18 G. Lastowka, ‘Copyright Law and Video Games: A Brief History of an Interactive Medium’ (2013) SSRN 2
11 they include multiple art forms such as music, video, plots, characters and scripts. Moreover, they involve human interaction and provide an immersive narrative experience through interplay of the above-mentioned art forms. Therefore, video games are not created as a single and simple work of authorship. Instead, they could be considered a mélange of individual elements that can be individually copyrighted if these elements can achieve a certain level of originality and creativity.20
However, a video game does not only consist of a multitude of art forms, it also encompasses a raw technology component. A video game is a program in and of itself but, on its own, entirely inert. More specifically, the program cannot be used without a proper tool to give it effect – it needs a platform. Nonetheless, the program itself remains a work of technology, and as such is subject to copyright law throughout the world. Both the artistic component as the technology component contains multiple elements, each of which can receive copyright protection.21 Lipson and Brain22 established which creative elements exist in a video game; Table 1 provides an overview of their findings.
Table 1: Creative elements in video games Audio Elements Video Elements Computer Code (Source Code and Object Code) I. Musical compositions I. Photographic Images I. Primary Game II. Sound Recordings II. Digitally Captured Engine(s) III. Voice Moving Images II. Ancillary Code IV. Imported Sound Effects III. Animation III. Plug-ins (Third Party V. Internal Sound Effects IV. Text Subroutines) IV. Comments
20 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 8. 21 M.G. Debono, ‘What’s in a Game? Intellectual Property Law for a Budding New Industry’ (FFF-Legal, 18 September 2013)
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Additionally, other subject matter - not mentioned by Lipson and Brain - may be eligible for copyright protection; the script, the plot and other literary works, characters, choreographies and pantomimes, maps and architectural works.23
To conclude, video games consist of a multitude of various elements. Therefore, video games are not created as a single and simple work of authorship. Instead, video games are an amalgamation of individual creative elements that are subject to copyright protection. The interactive nature of this entertainment form is of utmost importance, and will prove to be a key element in the discussion about copyright protection of audiovisual works.
2.3. The video game industry
2.3.1. Categorizing video games
Many AAA video game titles24 have budgets equivalent to Hollywood blockbuster movie titles. Consequently, the lifespan of some game studios is intertwined with the potential success or failure of their AAA titles. The structure of the video game industry can be relatively complicated, and, therefore, requires additional explanation in order to be fully understood.
Currently, video games can be divided into three distinct categories: Personal Computer (hereafter “PC”), video game console (hereafter “Console”) and mobile. PC games are created for general-purpose Personal Computers, where Microsoft’s Windows is the most common used operating system to run these games. However, Apple’s OS X and Linux also run numerous video games, and Linux is vastly becoming a full-fledged PC gaming platform.25 Console games are created for dedicated hardware (such as Sony’s PlayStation 4 (Pro), Nintendo’s Switch or Microsoft’s Xbox One (X)), which outputs a video signal to display the video game on a television or monitor. Additionally, Console games can be designed for handhelds; a lightweight, portable electronic device with a built-in screen, game controls and speakers (such as the PlayStation Vita and New Nintendo 3DS XL). Mobile games are designed to run on a wide range of mobile devices, including tablets, iPod’s and smartphones. New
23 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 8. 24 In the video game industry, AAA (pronounced "triple A") is a classification term used for games with the highest development budgets and levels of promotion. A title considered to be AAA is therefore expected to be a high- quality game and to be among the year's bestsellers. 25 GamesRadar, ‘The rise of linux as a gaming platform’
13 social network games and casual games (such as games found in the Facebook app center) would fall between the mobile and PC category. On the one hand, these video games run on PC web browsers, but on the other hand, their game design and target audience are similar to mobile games. Therefore, new social network games and casual games lean more towards the mobile category.26
Table 2: Three main categories of video games27 PC Console Mobile
Run Windows, Linux, or Run on dedicated Run on tablets and OS X hardware phones Wide variety in expense Expensive development Least expensive too Wide variety of genre Wide variety of genre develop No single gatekeeper System controlled by IP Social and casual for platform/open owners games platform Sales both through Potentially the largest Majority of sales Boxed and digital consumer base through digital versions versions, but majority through boxed versions
Like the film industry, the video game industry has a wide diversity of genres as well. The settings and scripts can be as diverse as movies: western, sci-fi, historic, dramatic, or comedic. Furthermore, gameplay mechanics of a video game are just as varied as their setting and story. Some current examples are: first person shooters (hereafter “FPS”), where the gameplay is centered on gun and projectile weapon-based combat through a ‘point-of-view perspective; Role playing games (hereafter “RPG”), where the player assumes the role of a character in a fictional setting and the player takes responsibility for acting out this role within a narrative through a process of structured decision-making and/or character development; third person shooters (hereafter “TPS’s”), where the gameplay is similar to an FPS, but where the player’s character remains visible on-screen; and sport games, where the game simulates the practice of traditional sports and let the player control the athlete(s) on-screen. Video game design is extremely diverse, and is only limited by the developer’s imagination.
26 D. Greenspan, ‘MASTERING THE GAME: Business and Legal Issues for Video Game Developers’ (2013) WIPO 18- 19. 27 Ibid, 18.
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2.4. Stakeholders within the gaming industry
As seen above, the video game industry has developed rapidly and expansively. Consequently, the amount of stakeholders involved within the video game industry has equally increased. In the 1980s, just a handful of stakeholders were involved and needed to create a video game. Nowadays, although it may vary between individual video games, video game creation is facilitated by a joint effort of hundreds and even thousands of different stakeholders (both technical as artistic employees are involved). As stated, the exact amount of people involved heavily varies on a case-by-case basis, and is dependent on the size of the project itself, platforms in scope and on the genre such a project falls into. Thus, currently a video game project may even involve a greater number of stakeholders than the stakeholders involved in the movie industry. Please revert to the table below for a concise overview of which professionals may be involved in video game creation:
Table 3: Overview of stakeholders within the video game industry28 STAKEHOLDER ALSO INCLUDES The Producer: Production coordinator Assistant producer This stakeholder supervises and oversees Associate producer the work of all those involved in creating the Director of production video game. Video game producers have a similar roleto that of a movie director. The Game Designers Lead Designer Level Designer Content Designer Game Writer System Designer Technical Designer User Interface Designer Creative Director Writer Scriptwriter
28 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 9-10.
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The Artist:
the creator of the visual art of the game The Programmer or software Engineer:
The person who creates and adapts the object and/or source code The Audio Designer:
The person who is responsible for creating sound effects and other related sound elements
Other non-creative positions: Other non-creative positions: Quality Assurance Tester Publisher of the video game Accountants Marketing experts Community Manager
Do note, that the table above does not represent an exhaustive list of involved stakeholders within video game creation. Nonetheless, the table does reflect the currently most common stakeholders who are usually found in the gaming industry.29
29 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 9-10.
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3. Copyright Framework
3.1. Introduction
The European Union (hereafter “EU”), consisting of 28 member states, finds its legal basis in the following documents: Treaty on European Union (originally signed in 1992 Maastricht), Treaty on the Functioning of the European Union (Originally signed in 1958 Rome in order to establish the European Economic Community), the European Union Charter of Fundamental Rights and the Treaty of Lisbon.
Within this cooperative framework, the EU aims at an economic and political union and, additionally, adheres to the ECHR and its fundamental rights. This union, through Regulations and Directives, resulted in a single market, dedicated to the principles of free movement of goods, services and firm controls over anti-competitive practices within the EU borders.30
The European intellectual property rights framework governs intellectual property, a term often used as a collective noun encompassing a variety of individual rights, such as copyright, designs, patents and trademarks. Individually, these rights may be referred to as an intellectual property right (hereafter “IPR”). These IPR’s are united by the subject matter that they govern; incorporeal or intangible creations such as, inventions, literary and artistic works, designs and symbols, names and images used in commerce.31 The majority of these intangible assets have a great economic value and, therefore, the European intellectual property rights framework is, in light of the national economies, of utmost importance to the member states of the EU.
The EU has accomplished an advanced level of integration concerning intellectual property law through its intellectual property framework consisting of various Regulations and Directives. However, considering the main research question is drafted around a specific IPR, this chapter will only address the current European copyright regime.
30 T. Prime, European Intellectual Property Law (Ashgate 2000) 3. 31 T. Aplin and J. Davis, Intellectual Property Law: Text, Cases and Materials (OUP Oxford 2013) 2.
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3.2. Global copyright perspective
The Berne Convention for the Protection of Literary and Artistic Works (hereafter “Berne Convention”)32 and the Paris Convention for the Protection of industrial Property (hereafter “Paris Convention”)33 are, in light of intellectual property, considered to be the most important international treaties originating from the late nineteenth century.
The Berne Convention, adopted in 1886, deals with the protection of works and the rights of their authors – copyright. Since the Berne Convention was the first multilateral treaty on copyright law, it has a vital place within the international copyright framework, and, thus, has played an essential role in the development of international and national copyright standards.34 Currently, the Berne Convention counts 168 signatory parties and has been revised and amended on several occasions. The ambit of the Berne Convention is enshrined in Article 1 of the Berne Convention:
“The countries to which this Convention applies constitutes a Union for the protection of the rights of authors in their literary and artistic works.”
The Paris Convention, adopted in 1883, applies to industrial property in the broadest sense, such as: patents, trademarks and industrial designs. Both treaties are administered by the WIPO, a specialized agency of the United Nations, created in 1967 with its current headquarter in Geneva, Switzerland. In addition to administering a variety of international treaties – including those discussed above – WIPO deals with numerous aspects of intellectual property regulation.35
The most recent, and arguably most extensive international treaty has been signed in 1994 and negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade – The Agreement on Trade-Related Aspects of Intellectual Property Rights (hereafter “TRIPS”)36. This comprehensive international treaty is, unlike the Paris Convention and the Berne Convention, administered by the World Trade Organization (hereafter “WTO”) and sets
32 Berne Convention for the Protection of Literary and Artistic Works (adopted 28 September 1979, entered into force 19 November 1984) TRT/BERNE/001 (Berne Convention). 33 Paris Convention for the Protection of Industrial Property, as last revised at Stockholm (adopted 14 July 1967, entered into force 26 April 1970) 828 UNTS 305. 34 T. Aplin and J. Davis, Intellectual Property Law: Text, Cases and Materials (OUP Oxford 2013) 47. 35 T. Aplin and J. Davis, Intellectual Property Law: Text, Cases and Materials (OUP Oxford 2013) 16. 36 Agreement on Trade-Related Aspects of Intellectual Property Rights (15 April 1994) UNTS 299
18 minimum standards of protection relating to intellectual property for all members of the WTO.37 A comprehensive summary of the essential features of TRIPS can be found on the official WTO website38, and a concise overview included below:
“The areas of intellectual property that it covers are: copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout- designs of integrated circuits; and undisclosed information including trade secrets and test data.”39
The three main features of TRIPS are: Standards; Enforcement; and Dispute settlement. Opinions regarding TRIPS vary between scholars. For example, R. Gutowski is of opinion that TRIPS could be characterized as a balance of gains and concessions for both the developed and developing countries.40 While other scholars conceive TRIPS as imbalanced, where the advantages of the Agreement cater to the developed countries.41
3.3. Acquis Communautaire
There is one definition that captures the essence of The European copyright framework – harmonization, or better stated the lack thereof. Unification within the European copyright framework has not been reached, meaning that the EU has not yet succeeded to introduce a Community-wide copyright. Instead, the EU uses – within the International copyright framework – a variety of Directives in conjunction with the provisions of the Treaty on the functioning of the European Union. Although the EU produced several Directives addressing copyright law, harmonization within the EU with regards to copyright law is not considered to be very “strong”. Based on the principle of territoriality, each of the member states adheres to its own national copyright laws, and, therefore, the EU does not have a direct competence with regard to copyright law.42
37 T. Aplin and J. Davis, Intellectual Property Law: Text, Cases and Materials (OUP Oxford 2013) 16. 38 WTO, ‘Overview: the TRIPS Agreement’
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Moving from the global context to a European context shows that the existing acquis communitaire relating to the field of copyright law mainly exists of eight Directives. However, for this thesis it suffices to only mention the following: Directive on the legal protection of computer programs (hereafter “CDP”); and the Information Society Directive 2001 (hereafter “InfoSoc Directive”)43. It is worth mentioning that, within EU law, the protection of moral rights or personal rights is not harmonized.
3.3.1. CPD
The forerunner of all Directives on the legal protection of computer programs is the Council Directive 91/250/EEC of 14 May 1991 (hereafter “CPD 1991”), which has been replaced with the CPD.44 The CPD 1991 was created with the primary objective to abolish differences between member state laws on the protection of computer programs. The obligation of member states to protect a computer program by copyright law – within the established regime of the Berne Convention – as literary works, is enshrined in Article 1 CPD. The CPD itself does not provide a definition of a computer program, however, the Explanatory Memorandum of the CPD does stipulate that a computer program is “a set of instructions the purpose of which is to cause an information processing device, a computer, to perform its functions. This includes the preparatory design material”. The CPD dictates that the term computer program shall include any programs in any form, and re-iterates that the preparatory design materials fall within the scope of such definition.45 In order to avoid an outdated description of a computer program, the Explanatory Memorandum advised not to include such a description in the CPD 1991.46 The CDP did harmonize the originality criterion for software in Article 1 (3) CPD: “A computer program shall be protected if it is original in the sense that it is the author’s own intellectual creation. No other criteria shall be applied to determine its eligibility for protection”.47
43 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167 [hereafter “Infosoc”]. 44 Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs [2009] OJ L111 [hereafter “CPD”]. 45 CPD, s 7 preamble. 46 F.W. Grosheide, H. Roerdink and K. Thomas, ‘Intellectual Property Protection for Video Games: A View from the European Union’ (2014) 9 JICLT 5. 47 CPD, art 1(3).
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3.3.2. InfoSoc
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, the InfoSoc Directive, is important in any European copyright discussion due to its important role in harmonizing a variety of European copyright law topics. The InfoSoc Directive has been introduced to implement two international treaties: the WIPO Copyright Treaty; and the WIPO Performances and Phonograms Treaty. However, this Directive went far beyond that initial scope; The Preamble of the InfoSoc Directive exhibits the broader scope of this Directive in Sections 2 and 5:
“(2) Copyright and related rights play an important role in this context as they protect and stimulate the development and marketing of new products and services and the creation and exploitation of their creative content. (…)
(…) (5) While no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation.”
This Directive focuses on different rights48 and especially on copyright exceptions49, additionally, the InfoSoc Directive introduces several technical definitions.50 The copyright protection under the InfoSoc Directive only extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts.51 Throughout this Directive, the term “rightholder(s)” is used extensively, therefore, it is remarkable that the InfoSoc Directive does not define this term. Moreover, this Directive abstains from defining “work of authorship”, thus, it is surprising to see that the ECJ in Infopaq52 introduced originality criteria for deciding whether a work of authorship deserves protection.53 Chapter 3.4.5 will address the originality criteria in more detail – including a short summary of the Infopaq case.
48 Infosoc, arts 2-4. 49 Ibid, art 5. 50 Ibid, art 6. 51 F.W. Grosheide, H. Roerdink and K. Thomas, ‘Intellectual Property Protection for Video Games: A View from the European Union’ (2014) 9 JICLT 5. 52 Case C-5/08 Infopaq International A/S v. Danske Dagblades Forening [2009] ECR I-06569, paras 35-38. 53 F.W. Grosheide, H. Roerdink and K. Thomas, ‘Intellectual Property Protection for Video Games: A View from the European Union’ (2014) 9 JICLT 5.
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3.4. Copyright elements and principles
Following the concise summary of the current international copyright framework as set-out out in the previous section, this chapter shall continue by addressing the key features and principles inherently related to copyright. This segment will set-out the following topics: rationale of copyright, ownership within copyright, rights under copyright, duration of copyright, and the originality principle.
3.4.1. Rationale of copyright
As assessed in chapter 3.2 and 3.3, copyright is an IPR which grants protection to creators of a copyrightable work. Generally, this protection is granted for a limited time and is commonly shared between multiple authors, where each of those authors holds a specific set of rights to use or license the work – commonly defined as rights holders.
The main rationale behind copyright laws is either based on utilitarianism or follows the natural right doctrine, where Member States may either lean towards the former or the latter position. The countries following the utilitarian approach emphasize that the economic reimbursement for the exploitation of a work (within a limited period of time) establishes an incentive for creativity. The countries supporting the natural right principle approach, are of opinion that everyone has a natural right of ownership to the works of their labor – including intellectual creations. The economic doctrine is mostly seen in Anglo-Saxon countries, while the natural right principle approach is generally seen within EU countries and other countries following a Roman law tradition. Thus, these two major copyright law traditions co-exist today: the Anglo-Saxon system (common law copyright system) and the continental European system (civil law authors’ rights system). The Anglo-Saxon System focusses on the protection of the work, while the continental European System emphasizes on the author itself. It is worth mentioning, that these traditional differences within copyright doctrine are gradually unified under the influence of international copyright harmonization.54
54 I. Katsarova, ‘The challenges of copyright in the EU’ (2015) EPRS 2.
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3.4.2. Ownership in Copyright
In principle, ownership of copyright entails that the author is the natural person who has created a copyrightable work. However, the EU does not provide a complete harmonized definition of authorship. Consequently, Member States provide different definitions as reflected in their national copyrights laws. On the one hand, in most civil law countries, only the physical creator can qualify as an author of a copyrightable work. At the other hand, in the majority of common law countries, third parties - such as legal entities and corporate entities – can be considered authors as well. Civil law countries do allow for contractual assignment of copyright (i.e. by an employee to an employer) to facilitate a transfer certain elements of copyright to such legal and corporate entities.55
3.4.3. The scope of Copyright?
Most national copyright laws differentiate two types of rights incorporated within copyright: Economic rights and Moral rights.
3.4.3.1. Economic Rights Economic rights permit rights holders to acquire financial compensation from use of their protected work(s) by others. Generally, in order to exercise economic rights, the creators of copyrightable works engage in collaboration with industry professionals such as publishers and producers. Economic rights are considered to be exclusive rights, which means that only the rights holder can use the copyrightable, or authorize the use of the copyrightable work, or prohibit the use of the copyrightable work. And additionally sets the conditions for such use of the copyrightable work. The specific uses of a work can be treated separately, thus, the rights holder can deal with each right (including using, transferring, licensing or selling the right) on an individual type-of-use basis.56 In other words, lawful use of the copyrightable work shall be at the sole discretion (in any form and any manner) of the rights holder; where the use of the copyrightable work by other persons is only allowed with the prior (written) consent of the right holder of such exclusive rights. Economic rights recognized within the international copyright framework includes typically:
55 I. Katsarova, ‘The challenges of copyright in the EU’ (2015) EPRS 4. 56 Ibid, 5.
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- The right of reproduction (i.e., making (digital) copies);57 - The right of distribution by way of tangible copies (i.e. selling, lending or rental of copies);58 - The right of communication to the public (i.e. through public performance, public display and circulation over the internet), and;59 - The right of transformation (i.e. the translation of a work).60
3.4.3.2. Moral rights The definition “moral rights” originate from the French expression “droit moral” and could be perceived as a classic misnomer; the term suggests that it would be an acronym of immoral rights or legal rights – neither are correct. Moral rights are intended as the opposite of the economic rights. Only an author of a copyrightable work, can enjoy these moral rights – even after the transfer of any economic rights such an author can invoke. In deviation of economic rights, these moral rights cannot be transferred/ceded. The primary moral rights encompass61:
- The right of attribution (authors can decide to connect their names to their work, and decide on making such work available to the public). - The right of integrity (an author can protect their work from derogatory, mutilation, modification or distortion). - The right of disclosure (an author can decide whether – and under which conditions - their work can be made available to the public for the first time). - The right of withdrawal (an author is able – subject to a myriad of terms and conditions – to withdraw their work from the market if he/she decides such work is not in alignment anymore with his/her intellectual or artistic initial vision.62
As stipulated above, the definition of moral rights finds it origin in France, however, some of these moral rights are currently internationally incorporated through the Berne Convention as well. More specifically, Article 5 and 6bis of the Berne Convention63 protects an author’s right of attribution and integrity.
57 Infosoc, art 2. 58 Ibid, art 4. 59 Ibid, art 3. 60 I. Katsarova, ‘The challenges of copyright in the EU’ (2015) EPRS 5. 61 I. Katsarova, ‘The challenges of copyright in the EU’ (2015) EPRS 4. 62 Ibid. 63 Berne Convention, arts 5 and 6bis.
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3.4.4. Duration of protection
As stated in the introduction of this chapter, the rights of an author are only granted for a limited time. Figure 1 below provides an overview how the duration of copyright is reflected in the world. For this thesis, it will suffice to shortly assess duration as provided by the Berne Convention and European legislation. The Berne Convention dictates – excluding some exceptions64 – that the term of protection of a copyrightable work shall amount to the term of the life of the author, and afterwards, shall be in place until fifty years after his/her death. This term was intended to provide protection for the author itself and the first two generations of his or her descendants. Within the EU, the Directive on the term of protection of copyright and certain related rights (hereafter “Term Directive”)65 harmonizes the conditions regarding the term of such protection of rights. The European Parliament recognizes that the minimum term of protection laid down by the Berne Convention does not correspond anymore with the current average lifespan of an individual in the Community.66 Thus, the Term Directive grants a term longer than the fifty years after the death of an author – reflecting the growth of the average lifespan in the Community.
More specifically, Article 1 (1) of the Term Directive provides protection for rights of author regarding literary or artistic works (within the meaning of Article 2 of the Berne Convention) for the life span of an author and 70 years after his death. Additionally, Article 2 (1) of the Term Directive states that the principal director of a cinematographic or audiovisual work is to be considered as the author (or at least one of its authors), where Member States have discretion to designate other co-authors to such works. Article (2) of the Term Directive stipulates that the term of protection shall expire after 70 years after the death of the following persons: principal director, author of the screenplay, author of the dialogue and/or composer of the music specifically created for the use in the work. Lastly, Article 3 of the Term Directive provides the term (and conditions) of protection regarding related rights. The Term Directive creates an explicit difference with regard to the duration of protection of author’s rights compared to producer’s rights. Following Article 3 (3) Term Directive, the rights of producers of first fixation of a film67 shall expire after 50 years the fixation is made. Thus, significantly
64 Berne Convention, 7(2) – (8). 65 DIRECTIVE 2006/116/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2006on the term of protection of copyright and certain related rights [2006] OJ L372/12 [hereafter “Term Directive”]. 66 Term Directive, s 6 preamble. 67 Term Directive, art 3(1) does define the term “film” as a cinematographic or audiovisual work or moving images, whether or not accompanied by sound.
25 shortening the duration of protection in comparison to the duration of protection granted to an author if a cinematographic or audiovisual work under Article 2 (1) Term Directive.
Figure 1: Duration of copyright protection in the world
3.4.5. Originality principle
3.4.5.1. Global perspective As briefly discussed in chapter 3.3.3, originality and the originality criteria are inherently connected to copyright. An essential starting point when discussing originality as a basic principle of copyright law is that the required level of originality, the so-called “intellectual creation”, should be presented in the expression of an idea, not in the idea itself. The Berne Convention implicitly incorporates this principle by stating: “The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as …” However, an explicit statement can be found in Section 2 of the WIPO Copyright Treaty and in Section 9 (2) of TRIPS, which state the following:
“Copyright protection [shall] extend[s] to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”68
68 See WIPO Copyright Treaty, art 2 and Berne Convention, art 9(2). These provisions are almost equivalent, except for the inclusion of “shall” in the TRIPS definition.
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This basic principle of copyright law emphasizes that it is not sufficient that an original idea takes shape in the mind of an author, instead it is a perquisite that an idea needs to be expressed in an original form that can be discerned by others.69 Thus, granting protection only to the original embodiment of one particular idea, and not the idea itself; this principle is also known as the idea-expression dichotomy.70
Originality makes an essential basic principle and requirement of copyright law. However, and considering its importance, it is fascinating that originality lacks an exact statutory definition.71 The major applicable international and multilateral copyright treaties do not explicitly provide a definition of what amounts to originality and which threshold it needs to reach on order to fall within the scope of copyright protection. Section 2 (1) of the Berne Convention provides an implicit general requirement of originality:
“The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression …”
That same Section 2 (1) continues with providing an exemplary list of works included in this implicit and broad definition of originality. Equivalent lists are commonly found in the majority of national copyright legislation. Although the term “original” is not explicitly included as a mandatory requirement in Section 2 (1), it can also be found in Sections 2 (3) and 14-bis of the Berne Convention.
However, what the threshold of originality is, and which tests need to be applied, etc., shall be decided on a national level.72
69 See i.e. the Case C 393/09 Bezpečnostnísoftwarová asociace v Ministerstvo kultury [2010] ECR I-13971, para 49 where this idea-expression dichotomy is utilized. 70 M. Manuela and others, Business, technological, and social dimensions of computer games : multidisciplinary developments (IGI Global 2011) 467. 71 S. Ricketson and J.C. Ginsburg, INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS: The Berne Convention and Beyond Second Edition (Oxford University Press 2005) para. 8.05. 72 T. Margoni, ‘The Digitisation of Cultural Heritage: Originality, Derivative Works and (Non) Original Photographs’ (2015) SSRN 8
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3.4.5.2. Being original in Europe The ECJ addressed the originality topic in five “recent” landmark cases: Infopaq, BSA, FAPL, Painer and Football Dataco v Yahoo73, and can be outlined as follows:
. EU copyright law requires the following originality standard: it needs to be the author's own “intellectual creation”.74 . The threshold of an author's own "intellectual creation” is reached when authors can exercise free and creative choices and actually put their personal stamp in the applicable work.75 . EU copyright law stipulates no originality can be present in cases where an expression is determined by technical or functional rules, such as: when an idea is only expressible in one way, or the expression is inherently connected to a specific goal or constrained by narrow rules which leave no space to free and creative.76 . EU copyright law does not consider skill and labor to be a determining factor in establishing originality of a work. Meaning that, even in substantive amounts, it does not contribute to the necessary free and creative choices of an author, and thus, do not lead to the creation of a work possessing the required originality.77
Infopaq is considered to be the first landmark case of the ECJ addressing originality, the ECJ stipulates that the Berne Convention assumes that the protection of the subject matter – such as artistic or literary works – only applies when they are intellectual creations.78 The ECJ emphasizes that other works (such as computer programs and databases) are only protected by copyright if these works are original, meaning that they are the author’s own intellectual creation.79 The ECJ explains that - through a harmonized legal copyright framework - the Infosoc Directive is based on the same principle; which can be substantiated through Recitals
73 Case C-5/08 Infopaq International A/S v. Danske Dagblades Forening [2009] ECR I-06569; Case C 393/09 Bezpečnostnísoftwarová asociace v Ministerstvo kultury [2010] ECR I-13971; Joined Cases C 403/08 and C 429/08 Football Association Premier League and Others v. Media Protection Services Ltd [2011] ECR I-09083; Case C 604/10 Football Dataco Ltd and Others v Yahoo! UK Ltd and Others [2012] Digital reports 2012; and Case C 145/10 Eva-Maria Painer v. Standard VerlagsGmbH and Others [2011] ECR I-12533. 74 Case C-5/08 Infopaq International A/S v. Danske Dagblades Forening [2009] ECR I-06569, para 36 Case C 604/10 Football Dataco Ltd and Others v Yahoo! UK Ltd and Others [2012] Digital reports 2012, para 38; Case C-5/08 Infopaq International A/S v. Danske Dagblades Forening [2009] ECR I-06569, para 45; Case C 393/09 Bezpečnostnísoftwarová asociace v Ministerstvo kultury [2010] ECR I-13971, para 50; and Case C 145/10 Eva-Maria Painer v. Standard VerlagsGmbH and Others [2011] ECR I-12533, paras 89 and 92 76 Joined Cases C 403/08 and C 429/08 Football Association Premier League and Others v. Media Protection Services Ltd [2011] ECR I-09083, para 98; Case C 393/09 Bezpečnostnísoftwarová asociace v Ministerstvo kultury [2010] ECR I-13971, para 49; and Case C 604/10 Football Dataco Ltd and Others v Yahoo! UK Ltd and Others [2012] Digital reports 2012, para 39. 77 Case C 604/10 Football Dataco Ltd and Others v Yahoo! UK Ltd and Others [2012] Digital reports 2012, para 53. 78 Berne Convention, arts 2(5) and 2(8). 79 Case C-5/08 Infopaq International A/S v. Danske Dagblades Forening [2009] ECR I-06569, para 35
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4, 9, 10, 11 and 20 of Infosoc Directive’s preamble.80 Moreover, the ECJ stresses that copyright within the scope of Section 2 (a) of the Infosoc Directive is only applicable to subject matter which is original within the meaning that it is the authors own intellectual creation.81 Conclusively, these statements of the ECJ confirmed all the other decisions under analysis, and shows the transformation from a partially harmonized to full harmonized standard of originality.82
3.4.6. Copyright and related rights
As already briefly addressed in chapter 3.4.4, a difference is highlighted between author’s rights and producer’s rights in the context of an audiovisual work and the impact thereof regarding the term of protection. In short, related rights or neighboring rights could be seen be as an opposition of author’s rights in the context of copyright law. These related rights are independent and are the rights of a creative work not associated with the actual author of such a work (e.g. rights of a producer of an audiovisual work). The actual scope of related rights varies between Member States but we can distill the protection of the rights of phonogram producers, performers and broadcasting producers on an international level through for example the Rome convention83 and TRIPS84. However, for this thesis it will suffice to focus solely on the rights of a producer of an audiovisual work. The Rental Directive85 and the Infosoc Directive provide certain rights to such a producer of first fixation of a film.86 The rights provided in these Directives are important in Europe for producers due to the fact such a producer is - in most Member States - not the initial owner of the copyrights connected to the film itself. The following rights ensure that a producer can prevent:
. Direct or indirect reproduction of a film87 . Making the film available to the public88
80 Ibid, para 36. 81 Ibid, para 37. 82 T. Margoni, ‘The Digitisation of Cultural Heritage: Originality, Derivative Works and (Non) Original Photographs’ (2015) SSRN 15
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. Any distribution of the film to the public (including copies of such a film) by sale or otherwise89
However, as already set-out in chapter 3.4.4, the rights of producers of first fixation of a film shall expire after 50 years the fixation is made. Thus, the protection of rights of producers of a film is significantly shorter compared to the duration of protection granted to an author of a cinematographic or audiovisual work.
It is important to note that the related rights as listed in the Term Directive, Infosoc Directive and the Rental Directive are not exhaustive. Meaning, Member states may grant additional related rights (e.g. rights for organizers of sport events).90 Consequently, the term of protection of these specific related rights will be subject to national legislation.91
3.5. Conclusion
Conclusively, the European copyright framework has tackled the inherent topics of ownership, moral and economic rights, duration of protection, originality criterion, and related rights. These are mostly incorporated within the CPD, Infosoc and national legislation respectively. However, as seen in this chapter Europe has not accomplished full harmonization on all elements. This overview on the current copyright framework within Europe shall suffice as a theoretical basis to investigate how video games fit within this current legislative foundation. Before this is possible, said framework needs to be narrowed down to the applicable and essential components in relation to video games – the regime of protection of audiovisual works and computer programs respectively.
89 Renatal Directive, art 9(1)(d). 90 S. von Lewinski and M. Walter, ‘European Copyright Law – A Commentary’ (OUP 2010) 559. 91 European Audiovisual Observatory, The Lifespan for Copyright of Audiovisual Works (European Audiovisual Observatory 2012) 14.
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4. Two regimes of protection
4.1. Introduction
As discussed in chapter 2, modern video games are complex works of authorship with variety of creative elements. Additionally, above mentioned chapter shows that these latest iterations of video games consist out of two main components: (1) the audiovisual elements (this includes sound, visual works and the graphical component); and (2) the software, which forms the underlying technical component to manage the included audiovisual elements of a video game and permits players to interact with all the elements of a video game – the “game engine”. Thus, unsurprisingly the qualification of video games within Europe is inherently connected to audiovisual works and computer programs and their respective European legislative framework. Therefore, this chapter will set-out the general European legislative framework of audiovisual works and computer programs. And it is essential to shortly address some of the specific rights and authorship connected to these two regimes of protection individually.
However, these rights are not fully harmonized throughout Europe and, as such, Member States uphold a myriad of different specific provisions in relation to these regimes of protection. For this thesis, and with respect to these regimes of protection of audiovisual works and computer programs, it will suffice to focus on the topics of presumption of transfer of rights, rules on authorship and rules on remuneration. However, the current scope of this thesis does not allow a detailed analysis of specific Member State copyright laws. Nonetheless, to demonstrate the repercussions of the applicability of these regimes to specific works, this chapter will make references to certain provisions of copyright laws of the following Member States: Belgium and The Netherlands. Notwithstanding the use of these specific Member States, it is important to understand that there is disparity on this topic within Europe
4.2. Audiovisual works
Audiovisual works are not harmonized within the European intellectual property framework, thus there is a lack of a clear definition of an audiovisual work. However, Article 2 of the WIPO Treaty on the international Registration of Audiovisual Works could be used as a basis to find coinciding elements within most definitions of audiovisual works:
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“For the purpose of this Treaty, audiovisual works” means any work that consists of a series of fixed related images, with or without accompanying sound, susceptible of being made visible and, where accompanied by sound, susceptible of being made audible.”92
Moreover, § 101 of Copyright Law of the United States of America and related Laws contained in Title 17 of the United States Code defines audiovisual works as:
““Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.”93
The Spanish Revised Law on Intellectual Property, regularizing, clarifying and harmonizing the Applicable Statutory Provisions as approved by Royal Legislative Decree No. 1/1996 of April 12, 1996 defines Audiovisual works in Article 86 (2):
“(1) The provisions enacted under this Title shall be applicable to cinematographic and other audiovisual works, understood as being creations expressed by means of a series of associated images, with or without incorporated sound, that are intended essentially to be shown by means of projection apparatus or any other means of communication to the public of the images and of the sound, regardless of the nature of the physical media in which the said works are embodied.”94
The above-mentioned definitions for audiovisual works show negligible differences, however, it provides a general understanding of audiovisual works within the existing copyright paradigm – a certain sequence of (related) images, incorporating or excluding sound, intended to be shown by means of any technical apparatus.
Within European legislation we can find many references to audiovisual works and can distill important aspects connected to this specific definition. Article 1 (c) of Directive 2006/115/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2006 on rental right
92 Treaty on the International Registration of Audiovisual Works (Film Register Treaty) (adopted at Geneva on 20 April 1989)
32 and lending right and on certain rights related to copyright in the field of intellectual property (hereafter “Rental Directive”) stipulates following:
“‘film’ means a cinematographic or audiovisual work or moving images, whether or not accompanied by sound.”
Whereas Article 3 (3) of the Term Directive stipulates:
“The rights of producers of the first fixation of a film shall expire 50 years after the fixation is made. However, if the film is lawfully published or lawfully communicated to the public during this period, the rights shall expire 50 years from the date of the first such publication or the first such communication to the public, whichever is the earlier. The term ‘film’ shall designate a cinematographic or audiovisual work or moving images, whether or not accompanied by sound.”
These Articles from their respective Directives indicate that a “film” seems to be a defined example of what falls within the scope of an audiovisual work in the eyes of the European Union. Moreover, Articles 2 (2) of the Rental Directive and Article 2 (1) of the Term Directive explicitly stipulate that the principal director of an audiovisual work shall be considered as an author (or co-author respectively). Both Articles provide Member States the right to appoint and designate other co-authors involved in the production of an audiovisual work:
”The principal director of a cinematographic or audiovisual work shall be considered as its author or one of its authors. Member States may provide for others to be considered as its co-authors.”95
Following these provisions, although not explicitly, the applicable European copyright framework considers audiovisual works as a separate regime of protection whereas it seems to be primarily focused on film. Additionally, we can see a clear distinction created by the applicable European legislators; the rights of a producer versus the rights of a (co-)author (including a principle director) of an audiovisual work. Thus, audiovisual works do not only invoke standard copyright with regard to its (co-)authors, but also establishes related rights in favor of its producers. Moreover, Member States have been granted discretion on whom to consider a co-author of an audiovisual work.
95 Rental Directive, art 2(2); and Term Directive, art 2(1).
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4.3. Computer programs
The criteria for protection of computer programs are harmonized through the CPD. The Directive stipulates that Member States shall be obligated to protect computer programs insofar the computer programs are original; where original should be interpreted as the author's own intellectual creation.96 Article 1 (1) of the CPD explicitly stipulates that preparatory design materials of computer programs fall within the definition of a computer program. Thus, these preparatory design materials fall within the scope of protection under the CPD. The CPD does not include additional requirements for computer programs to fall within the scope of its protection, as such, underlining the key difference in copyright protection between computer programs and other “works” in the European Copyright Framework – the threshold for protection for computer programs is significant lower. Additionally, the CPD includes some rather exclusive exceptions to its protection of computer programs:
“First, as regard acts done by law a lawful acquirer of a program which are necessity by use of the program for its intended purpose. Second, to allow the making of back-up copies. Third, to permit the studying and testing of the program. Fourth, and most controversially, to permit – in very limited circumstances – the de-compilation of programs.”97
Important to note that Section 11 of the preamble of the CPD stipulates that: “only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright under the CPD. In accordance with this principle of copyright, to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected under the CPD. In accordance with the legislation and case-law of the Member States and the international copyright conventions, the expression of those ideas and principles is to be protected by copyright.”98
Every computer program is written in a specific programming language (e.g. Java, C++, etc.). Depending on the size of such a computer program, such a work could incorporate thousands to millions of lines of codes of applicable programming language. An important distinction needs to be made between source code versus object code. Firstly, the code is written in a
96 L. Bently and B. Sherman, Intellectual Property Law (OUS Oxford 2004) 46. 97 L. Bently and B. Sherman, Intellectual Property Law (OUS Oxford 2004) 46; and CPD arts, 5 and 6. 98 CPD, s 11 of the preamble.
34 textual form (“source code”) by an author (mostly by a programmer), and consecutively, this source code will be translated/compiled - by a specific program called a compiler - into another format (“object code”). The resulting object code can finally be executed directly by a computer and this code is then further distributed as object code.99 Both source code as object code fall within the scope of protection of the CPD as Article 1 (2) of the CPD provides protection to the expression in any form of a computer program. More specifically, they are protected as literary works within the meaning of the Berne Convention.100
Another key element of a computer program is the Graphical User Interface (GUI). The ECJ was confronted with the question whether a GUI falls within the scope of protection as a computer program. A GUI is defined by the ECJ as an interactive interface which enables communication between the computer program and the user.101 Please revert to Figure 2 below which visualizes a GUI in different works.
Figure 2: GUI examples
However, the ECJ stipulates that the GUI does not enable the reproduction of a computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.102 Consequently, the GUI does not establish a form of expression of a computer program within the meaning of Article 1(2) of the old Council
99 E. Felten, ‘Source Code and Object Code’ (Freedom to Tinker, 2 September 2002)
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Directive 91/250/EEC103. Thus, a GUI cannot be protected specifically by copyright in computer programs by that directive. Instead the ECJ clarifies that, if a GUI is an author’s own intellectual creation, such a GUI could be protected under “ordinary law of copyright” by virtue of the Infosoc Directive. 104
The CPD includes a significant presumption regarding transfer of exploitation rights of computer programs in the context of an employer – employee relationship.105 This provision specifies that where a computer program is created by an employee in the capacity of following his duties or following specific instructions provided by the employer, the employer shall be exclusively entitled to exercise all of the economic rights in the computer program, unless otherwise agreed upon by virtue of a contract executed by such an employee and employer. It should be noted that this provision only refers to economic rights, and thus, excludes any entitlement of the employer to any moral rights in such computer programs.
4.4. The rules of audiovisual works
Each regime of protection goes in conjunction with applicable rights. Thus, a qualification of a work towards a certain regime of protection has, consequently, impact on which specific applicable rights apply to such a work. As shortly stipulated, for this thesis it suffices to cover the topics of rules on authorship transfer of rights, and rules on remuneration. To demonstrate the differences between the regimes of protection in relation to the above-mentioned topics, this section shall provide legislative examples of Belgium and The Netherlands.
Belgium Currently the Wetboek van Economisch Recht (hereafter “WER”) governs copyright in Belgium. More specifically, Titel 5 – Auteursrecht en naburige rechten of the WER incorporates the provisions regarding audiovisual works. Article XI. 179 WER provides a presumption of (co-)authorship of an audiovisual work; besides the principal director, the scriptwriter, graphical designer and author of the musical composition enjoy a presumption of authorship in accordance with Article XI. 179 WER.
103 Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer program 104 Case C 393/09 Bezpečnostnísoftwarová asociace v Ministerstvo kultury [2010] ECR I-13971, para 51. 105 CPD, art 2(3).
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The producers of audiovisual works are not qualified as (initial) authors under the WER. Instead, the WER provides a limited presumption of transfer of rights under Article XI. 182 WER:
“Unless otherwise agreed, the authors of an audiovisual work and the authors of a creative element lawfully integrated or used in an audiovisual work, except the author of musical compositions, assign to the producer the exclusive right of exploitation of the audiovisual work, including the rights required for such exploitation such as the right to add subtitles or to dub the work (…).”106
This classification is limited in the sense such an assignment only relates to the exclusive right of exploitation of such an audiovisual work. Thus, it does not include any other economic rights or moral rights. However, the scope of this Article XI. 182 WER goes beyond audiovisual works created by employees as it specifically states it also includes “the authors of a creative element lawfully integrated or used in an audiovisual work”. Meaning that the creative works of a freelancer falls within the scope of this presumption of rights.
In return for the presumption of transfer of those exploitation rights, Article XI. 183 WER sets-out a proportional remuneration framework in favor of the initial (co-)authors (excluding audiovisual works related to the cultural sector or marketing sector). The amount of such remuneration shall, unless otherwise provided, be proportional to the gross revenue obtained from exploitation.107 “Unless otherwise provided” provides a contractual exclusion of such proportional compensation, which is usually included in a contractual relationship between author and producers.
106 Wetboek van economisch recht (hereafter “WER”), art XI.182. 107 WER, art XI.183 para 2.
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The Netherlands The Auteurswet (hereafter “AW”) provides the legal copyright framework of The Netherlands. Article 45a sub 2 AW does not specify an exhaustive list of authors of an audiovisual works. Instead it states that all natural persons who contributed in a creative manner to an audiovisual work are considered to be an author. Thus, a case-by-case analysis would be required to conclude which of the people involved in making an audiovisual work, will fall within the definition of this Article. However, Article 45a sub 2 AW is still subject to Article 7 AW; meaning that:
“Where labor which is carried out in the service of another consists of creating certain literary, scientific or artistic works, the person in whose service those works were created is considered to be the author unless the parties have agreed otherwise.”108
Therefore, and unlike most other Member States, this Article 7 AW invokes the possibility for an employer to be an actual initial “fictive” author of a work. Meaning in such an event, an employer enjoys both economic as moral rights.
Moreover, Article 45d AW states that unless the authors and the producer of a film have agreed otherwise in writing, the authors are deemed to have assigned to the producer the right to rent out the film and to disclose it to the public in any other way, to reproduce it within the meaning of Article 14 AW, to subtitle it and to dub the dialogue. The only exception is that this presumption does not apply to whoever composed the music for the film.
The AW complements the presumption of transfer as set-out in Article 45d with a proportional reimbursement framework; irrespective of the manner of assignment, the producer owes the authors fair compensation for the assignment of rights and the exploitation of the film. It should be noted that this right to fair reimbursement cannot be waived.109
108 Auteurswet (hereafter “AW”), art 7 AW 109 AW, art 45d.
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4.5. The rules of computer programs
Belgium Titel 6 – computerprogramma’s of the WER incorporates the provisions with regard to computer programs. However, in principle, authorship of computer programs is governed and determined in accordance with ‘ordinary copyright law’ (Titel 5 - Auteursrecht en naburige rechten). Article XI. 170 WER stipulates that the natural person that created the computer program should be appointed as the author of such a work. However, Article XI. 296 WER states that within an employee – employer relationship a presumption of economic rights in favor of the employer applies under the following conditions: if a computer program is created by the employee in carrying out his duties of by following instructions of the employer. The presumption of transfer regarding computer programs has a wider scope compared to the presumption of transfer in connection to audiovisual works; the latter solely includes a presumption of transfer of exploitation rights. In accordance with Article XI. 297 WER, moral rights do not fall within the scope of such a transfer – it only relates to the economic rights of a computer program. Moreover, freelancers do not fall within the scope of Article XI. 297 WER – thus, any transfer of rights should be tackled through contractual provisioning in accordance with the WER.
Transfer of economic rights of computer programs is, in contrast to audiovisual works, not complemented by a legislative proportional reimbursement framework.
The Netherlands Although the AW has a specific Section VI (Hoofdstuk VI. Bijzondere bepalingen betreffende computer programma’s), authorship of computer programs should be established in accordance with Article 1 AW. Section VI does not incorporate an exception to that rule, instead Article 7 AW should be considered as it applies to computer programs as well (Article 7 AW in conjunction with Article 10 (1) sub 12 AW).
The AW does not provide a specific legislative proportional compensation framework for a transfer of rights in relation to computer programs.
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4.6. Conclusion
With the examples above, it is clear that a classification of a work towards a certain regime of protection dictates which legislative rules apply with regard to authorship, transfer of (economic) rights and (proportional) remuneration. Consequently, depending on the work and specific case, certain stakeholders might lean towards a certain regime of protection to maintain a most favorable position in relation to the rights of a work.
Moreover, although this chapter only covered examples of two Member States, it is should be noted that these specific national laws can differ within Europe; there is a long way to full harmonization on the above-mentioned topics, leading to ambiguity within Europe for stakeholders operating on an international level. The Legal Status of Video Games: Comparative Analysis in National Approaches published by the WIPO provides a more detailed overview that reflects this diversity amongst countries worldwide (including many Member States) on the topics discussed.
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5. Video games versus the regimes of protection.
5.1. Introduction
As stated above, video games consist out of two main components: (1) the audiovisual elements; and (2) the software. This section shall assess video games within the existing regimes of protection of computer programs and audiovisual works within our European copyright framework. However, as already stated, this research does not allow for a detailed comparison between national Member States laws on these individual regimes of protection including their specific rules and rights. Thus, the statements below are heavily dependent on which national laws apply to the applicable work. Nonetheless, it reflects the overall effectiveness (or lack thereof) when qualifying video games within these two regimes of protection.
5.2. Video games as computer programs?
As stated in chapter 2, the software – or game engine as used by the gaming industry - is instrumental to video games. It is an essential apparatus utilized during development of a video game and the technical feats in order to actually drive the video game through a console, computer or other applicable device(s). Such a game engine consists of (source and object) code reflected in a myriad of programming languages. Important to re-iterate that, in accordance with the CPD110, only the expression of the game engine is protected and the ideas and principles which underlie any element of the game engine are not protected under the CPD. Moreover, and in accordance with the ECJ decision in BSA111, the GUI of a video game would not fall within the scope of protection of the CPD. Meaning that – as reflected in Figure 2 of chapter 4.3 – the “health bar”, “minimap”, and “spell interfaces” will not be protected as computer programs – but might, instead, be protected under ordinary law of copyright.
110 CPD, s 11 of the preamble. 111 Case C 393/09 Bezpečnostnísoftwarová asociace v Ministerstvo kultury [2010] ECR I-13971.
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5.2.1. How do video games play with computer programs?
The specific requirements related to the classification as a computer program are significantly less stringent when compared to audiovisual works. As established in chapter 4.3, the program needs to be original; where it should be interpreted as the author’s own intellectual creation and where only the actual expression of a program shall be protected. The preparatory materials fall within the scope of potential computer programs. Thus, video games could fall rather easily within the scope of protection as computer programs. Nonetheless, there are specific issues related to such a qualification as a computer program.
Firstly, there is a caveat within the gaming industry that needs to be considered. In modern gaming development, most video games will share (some) of their source code. This occurs via the usage of equivalent third party software and tools – “middleware”.112 This modus operandi is cost saving and time efficient in relation to the development of video games. Where middleware is integrated in the respective game engine to tackle specific specialized aspects within a video game; including but certainly not limited to physics, graphics, AI, pathfinding and animations. Some popular examples of middleware in AAA video games titles include: Havok113, UnrealEngine114, and Euphoria115. Consequently, the source code of such video games only consists of small amount of fit for purpose-made code; which is not even original per se. Therefore, it may be questionable whether courts will uphold rulings stating that such source code of video games remain copyrightable in potential future disputes.116
Secondly, as already stated above, only the particular expression of a computer program, meaning only the specific pattern and sequence of program instructions, is copyrightable under the CPD.117 This premise creates an additional problem when protecting video games as computer programs. (source and object) code and can be written in a variety of ways, and only the actual chosen method by a programmer of a code is copyrightable. This issue is best explained through a short illustration, where a number could be the equivalent to the code of a video game. Let’s emphasize on the number twelve (12), this number can be written in
112 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 93. 113 Havok, ‘Havok’
42 multiple ways: 5+7, 9+3, 4x3, 24/2, etc. Although a bit more complex, the same is applicable for (source and object) code - and as such for game engines - of video games. Consequently, to circumvent potential copyright infringement under the CPD, amending the (source and object) code into a non-copyrighted pattern and sequence of program instruction shall suffice.118
Thirdly, the specific exceptions and rules in relation to the protection of computer programs, as reflected in chapter 4 and as incorporated in the CPD under Article 5 and 6 of the CPD, may cause issues when qualifying video games as computer programs. Article 5 (2) of the CPD provides the right to make back-up copies of a video game is not an element favorable to the authors and owners of video games. Although not in scope of this thesis, pirating of video games remains a major issue within the gaming industry.119 As a result of these pirating practices, the respective stakeholders are actively engaging in variety of solutions to mitigate the pirating of their works. Examples are usage of DRM technologies and limited licenses in relation to such video games. Moreover, although the majority trend within the gaming industry is shifting more and more towards a digital market, the right to create a back-up copy of a physical video game media seems incompatible.
Article 5 (3) of the CPD sets-out the right to test does not translate well to video games, as the technical (system) requirements are specifically incorporated in the respective product descriptions and/or product packages and/or licenses of video games.
Albeit subject to specific requirements under Article 6 of the CPD, de-compilation of video games may pose a problem for the video game rights holders. Under this Article 6 of the CPD, the operations of reproduction and translation of the source code for the purposes of decompiling are, subject to the conditions as set-out below, not subject to the prior authorization of the rights holder of a computer program.
This right is only permitted when (i) these actions are implemented by a lawful user of a computer program; (ii) such operations of reproduction and translation are indispensable to obtain the necessary information needed in light of the interoperability of independently created software with other software programs; (iii) such information is not easily (or quickly)
118 Ibid. 119 Pirating can be explained as the unauthorized or prohibited use of video games, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce the copyrighted work, or to make derivative works.
43 accessible; (iv) such operations are limited only to the components of the computer program which are essential to the interoperability; and (v) such information has not been used for production, marketing or developing such computer program which is materially similar to the original computer program, the information obtained has not been used for the development, production or marketing of a computer program whose expression is substantially similar in its expression.120
Notwithstanding the great variety on specific national rules with regard to computer programs, the principle of a presumption of transfer of (economic) rights to employers as provided when video games are considered as a computer program is an advantage for the stakeholders within the gaming industry. For example, an employer does not need to include a “transfer or (economic) rights provision” in an employee contract when video games are qualified as computer programs. However, subject to specific country deviations (such as The Netherlands), it is rather unfavorable for an employer in the gaming industry not being able to be the initial author of a video game in this regime of protection.
Albeit subject to specific Member State laws, the majority of countries within Europe does not uphold a proportional remuneration framework for the employees seen as an author of a computer program.121 While this may be favorable for the employers within the gaming industry, said employees within the video game are less fortunate with the lack of such a framework.
5.3. Video games as Audiovisual Works?
The game engine forms an integral part of a video game, however, graphics, art, storylines, (main) characters and sound are equally essential. Especially since video games have evolved immensely since Tennis for Two in 1958. Moreover, the gaming industry and its stakeholders shares multiple similarities with the movie industry. Both video games and movies are created by a great variety of authors and other stakeholders; e.g. musical composers, script writers, producers, directors, etc. Thus, some scholars and Member States suggest that video games should be considered as works that would fall within the scope of audiovisual works.122
120 CPD, art 6. 121 See for example The Netherlands and Belgium as set-out in chapter 4 122 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 10.
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Meaning that video games could meet the requirements of audiovisual works classification - a “series of related images”, which are “intended to be shown”.
5.3.1. How do video games play with audiovisual works?
The first component of the definition of an audiovisual work “series of related images” seems to correspond with video games as the (cinematic) images whilst playing a video game are perceived in a similar way as the cinematic images of a movie. However, video games may potentially stress the second component of the definition of an audiovisual work – “intended to be shown”. As already established, video games are inherently interactive forms of media, while audiovisual works – as defined in the current copyright paradigm – entails passive viewer participation. 123 In other words, video games entail active viewer participation while movies (save interactive movies) are consumed in a passive manner.
The issues regarding the qualification requirements of an audiovisual with regard to video games have been tackled by the courts. More specifically, early video game cases handled by the German courts lead to an exclusion of classification of video games as audio visual works; instead the applicable courts decided – if the originality criteria have been met – such video games should be qualified as computer programs. In Donkey Kong Jr.124, the German Court of Appeal in Frankfurt denied the protection of a video game as an audiovisual work due to its inherent nature – interactivity. The Court stipulated that players were able to interact with the work itself, meaning a player was able to initiate different approaches leading to a different sequence of images within each play through of the respective video game. Thus, the Court was of opinion that the lack of predefined sequences of images and, thus, the multitude of potential different outcomes, was contradictory to the notion of a film.125
However, in later video game cases in Germany covered the same classification issues. The Bavarian Supreme Court stipulated that, in contrast with the decision of the Court of Appeal in Frankfurt, the lack of predetermined sequences of images and on which medium fixation took place are irrelevant in answering the classification requirements. The Supreme Court emphasizes that player interactivity is limited within the boundaries as set-out by the video
123 Ibid. 124 Case Donkey Kong Junior [1983] OLG Frankfurt GRUR, 757. 125 Ibid, 758; and I.A. Stamatoudi, Copyright and Multimedia Products: A Comparative Analysis (Cambridge University Press 2001) 175.
45 game authors, and thus, does not exclude video games of audiovisual works.126 A similar rationale was applied by the Parisian court in Atari v. Valadon; where the French court stipulated the following: “Any movements (in the video game) do not originate in the actual creativity of the player, but in fact that the player, by using his arm, gives rise in pre- established program to one or another situation, the number of which is by definition limited”.127 Most national courts decided that the interactivity of the players does not impinge the requirements connected to classification as an audiovisual work. The video game always remained equivalent to how it has been fixed on the microcircuit chips (hereafter “ROMS”); the player’s interactivity did not impede that fixation. Thus, within that scope, the players’ interactions were restricted by both the limited selection of images and the concrete option in selecting these images.128 Nonetheless, it may be challenged that with the rapid development and evolution of video games the player interactivity has vastly increased, and thus, these modern (and future) video games may stress the audiovisual classification requirements again. Video games such as Minecraft and Second Life129 already expands player interactivity to a level of full manipulation of a video game with actual (potential) creative efforts by such players. Thus, such evolved interactivity may again impose issues in relation to classification requirements of audiovisual works.
Additionally, there are more complications when categorizing video games as audiovisual works. Within the development of video games, (co-)authors are not necessarily the same authors which are involved in the technical aspects of a video game who are tasked with the programming of (source and object) code. Moreover, the related rights entangled with audiovisual works do not necessarily exist within video games.130
Most Member States include a non-exhaustive list of what amounts to an audiovisual work.131 Thus, video games could be included as such in most cases. Besides the provisions of the Rental Directive and Term Directive stipulating that a principal director shall be seen as an author of an audiovisual work, there is no harmonization within Europe on who should be
126 12 May 1992 ZUM 545, 546; I.A. Stamatoudi, Copyright and Multimedia Products: A Comparative Analysis (Cambridge University Press 2001) 177. 127 Case Atari v. Valadon [1982] TGI 48, 31; and I.A. Stamatoudi, Copyright and Multimedia Products: A Comparative Analysis (Cambridge University Press 2001) 174. 128 I.A. Stamatoudi, Copyright and Multimedia Products: A Comparative Analysis (Cambridge University Press 2001) 181 and 182. 129 Minecraft, ‘Minecraft’
46 considered a (co-)author of an audiovisual work. Thus, each Member State has the discretion in deciding whom shall be considered such a (co-)author.132 As seen in chapter 4.4, some Member States incorporate a list of stakeholders which enjoy a presumption of (co-)authorship in connection to an audiovisual work.133 In principle, such a presumption of authorship would work well for videogames. However, despite the similarities between the movie and gaming industry, most lists include (co-)authors that do not necessarily translate all that well to the stakeholders involved in the gaming industry. Moreover, the lack on harmonization throughout Europe with regard to the presumption of authorship lists, imposes legal uncertainty for the relevant stakeholders; Member States upholding a limitative list of specific (co-)authors of audiovisual works may exclude specific creative contributors of a video game.
Moreover, as video games are a joint effort with a myriad of (co-)authors, video games can make use of the “fail safe” included in most nation laws of Member States in relation to audiovisual works – the right of the producer to finalize the audiovisual work when one of its author does not want to/is not able to cooperate anymore.134 However, important to re-iterate that the presumption of transfer of rights to the producer is in most Member States limited to the exploitation of an audiovisual work; which means that video game producers (developing studios) would need to ensure transfer of all other economic rights through a specific contractual provision.
In contrast to the lack of a proportional remuneration scheme within most Member State’s national laws regarding the regime of protection of computer programs, the majority of countries within Europe to incorporate such a remuneration framework within the legislative provisions in relation to the regime of protection of audiovisual works.135
5.4. Conclusion
Based on the distinctive characteristics of video games, the current European copyright framework facilitates two regimes of protection to qualify video games – the regime of protection of computer programs and the regime of protection of audiovisual works. Although
132 Rental Directive. art 2(2); and Term Directive, art 2(1). 133 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO chapters Belgium, Denmark, France, Spain. 134 See i.e. WER, art XI.180 and AW, art 45(b). 135 See i.e. The Netherlands and Belgium as set-out in chapter 4.
47 it could be argued video games (partially) fit within these regimes of protection, video game qualification as a computer program or as an audiovisual work introduces a myriad of issues that show these regimes of protection were not designed specifically to incorporate video games. It seems that – for now - national courts within Europe have been able to overcome the issues relating to the classification requirements for audiovisual works. Nonetheless, the rapidly growing (and already existing) forms of interactivity and the unharmonized legislation regarding audiovisual works within Europe stresses the classification of video games as an audiovisual work. Video games have evolved over the last 30 years, and earlier case law does not necessarily apply anymore 1:1 to the modern iterations of video games.
The classification of a videogame as a computer program seems to be easier accomplished, as the originality can be met by video games (and their preparatory materials). The lack of additional classification requirements lead to a much lower threshold of qualification. However, specific issues such as, middleware, coding language, lack of remuneration schemes, and the specific exceptions as incorporated in Article 5 and 6 of the CPD, may stress the classification of video games as a computer program.
Based on the findings of this chapter, the next section shall continue to address the most commonly used qualification approaches utilizing the classification methods. The unitary approach versus the distributive approach.
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6. European qualification methods
6.1. Introduction The complex and cross-cutting nature of video games, and the complications arising when discussing the legal qualification of video games within a European or even international copyright framework, have been acknowledged by WIPO in 2014.136 As already stated, the WIPO decided to research the current legal status of video games within a variety of jurisdictions in the field of copyright and tried to raise awareness on this topic. This document of the WIPO depicts the lack of clear and definitive answers regarding the legal qualification questions of video games within the existing European and the international copyright Framework – there is no harmonized or even tailored qualification of video games in any copyright regime. Within Europe, based on the regime of protection of computer programs and the regime of protection of audiovisual works; the following video game qualification approaches will be addressed including examples of Member States and/or case law: unitary qualification and the distributive qualification.
6.2. Unitary approach as Audiovisual or Computer Program
Currently, countries like Argentina, Canada, China, Israel, Italy, the Russian Federation, Singapore, Spain and Uruguay, consider video games to be, primarily, computer programs. Jurisprudence and scholars highlight the specific nature of video games and their dependency on software for implementation. Whereas a few countries, including the Republic of Korea and Kenya, believe that video games should only be considered as audiovisual works. These countries focus on the visual elements of video games and not on the software.137 These considerations can be qualified as a unitary classification of video games. Where a video game should either be protected as a computer program or as an audiovisual work. Consequently, the specific rules of either regime shall apply to such a work.
In early video game cases (where such cases are mostly found in the USA, France, Germany and Belgium), national courts upheld this unitary qualification approach; where most courts
136 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 11. 137 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 11.
49 leaned towards a unitary qualification of video games as a computer program.138 This preference was mainly established due to the qualification issues of video games in relation to an audiovisual work classification as highlighted in chapter 5.3.
Such unitary application of either the regime of protection as an audiovisual work or as a computer program diminishes the inherent complexity of (modern) video games. As already stated multiple times throughout this thesis, and addressed in more detail in chapter 2; video games consist of a myriad of specific characteristics –a mélange of individual elements. If a unitary approach is applied, it reduces a video game to one of its core characteristics. When a video game falls within the regime of protection as a computer program; the technological component (object and/or source code and/or preparatory materials) shall prevail. Consequently, the intellectual and artistic efforts incorporated in video games in relation to audio and visual elements shall be of secondary importance. On the other hand, when a video game is qualified solely as an audiovisual work, such technical components are ignored.
Moreover, a unitary approach raises questions regarding authorship. In consideration of all specific issues as summarized in chapter 5 in connection to an application of video game as an audiovisual work or computer program, it subsequently raises the question whether the specific rights of a computer program in relation to a programmer, can equally apply to an employee/(co-)author that did not contribute to the technical component but, instead, on the audiovisual component of a video game . On the other hand, the same question applies when a video game is qualified as an audiovisual work in relation to such a programmer. In other words, and especially in Member States that uphold an exhaustive list of presumed authors in relation to an audiovisual work, would a programmer be considered as an (co-)author of such an audiovisual work? Additionally, if a unitary approach elects a computer program classification for video games; what happens to the inherently connected stakeholder and his/her (related) rights – the producer. The regime of protection of audiovisual works specifically covers and considers the contribution of a producer in a film. As already established, the producer of a video game has a similar role. Consequently, this stakeholder will not equally be protected as it would be under the regime of protection of audiovisual works.
138 I.A. Stamatoudi, Copyright and Multimedia Products: A Comparative Analysis (Cambridge University Press 2001) 174; and Case Pengo [1983] OLG Frankfurt GRUR 753; and Case Donkey Kong Junior [1983] OLG Frankfurt GRUR, 757.
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6.3. Distributive classification of video games
In contrast, currently other countries, like Belgium, Brazil, Denmark, Egypt, France, Germany, India, Japan, South Africa, Sweden and the United States of America, uphold a distributive classification of video games. Such an approach considers the complexity of video games and, therefore, copyright protection must be sought separately for each individual element of a video game (e.g. graphical elements, underlying computer program or audio elements).139
In the more recent video game cases, this distributive approach seems to be applied in most Member States.140 The distributive classification differentiates between the technical elements and the other creative and intellectual elements which do not lead to any reproduction of the technical component of a video game; such as the audiovisual elements and story. Consequently, if a video game meets the requirement of originality and the specific requirements as inherently connected to a computer program classification and an audiovisual work classification, protection for both these types of regimes could be awarded to a video game. In other words, each element of a video game shall be independently classified towards the most applicable regime of protection. Consequently, each classified element shall be subject to the specific provisions connected to such a regime of protection.
This distributive approach has an impact on the myriad of (co-)authors and stakeholders involved in creating a video game. When all criteria have been met, a programmer shall be subject to the specific provisions applicable to a computer program. Where the specific rights and rules in connection to an audiovisual work shall, as an example, apply to a graphical designer of a video game. Consequently, the rules regarding the transfer of rights differ between the employees that fall within the scope of a computer program versus the employees that are subject to the provisions in relation to an audiovisual work. In practice, as set-out in chapter 4.3, an employer (subject to specific deviating Member States laws) does not necessarily need to incorporate a transfer of economic right provision within the labor contracts of their programmers; as such rights automatically transfer (subject to the requirements as set-out in the CPD and specific Member State laws) from an employee to an employer.
139 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 11. 140 See ECJ Case C 393/09 Bezpečnostnísoftwarová asociace v Ministerstvo kultury [2010] ECR I-13971; and German Case Super Mario III [1990] OLG Hamburg GRUR 127; and Australian Case Sega Enterprises Ltd v. Galaxy Electronics Pty Ltd [1998] FCA 40; and Belgian Case BEA, Sega en Ubisoft v Bibnet [2014] 6 AM 48.
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The distributive classification of video games raises various issues that may lead to legal uncertainty. For instance, what happens when it is not clear which regime of protection should be applied in a specific case, what if (future) video games incorporate hundreds of different creative elements that need be taken into account, and how to deal with conflicting rules of both regimes? The following solutions could overcome some of these proposed issues on the distributive approach in relation to video games. For example, when a court is not able to determine which element, and thus, which regime is applicable in a specific case; a “lex generalis” application of common copyright law (as a literary work) could be introduced as a fallback mechanism. 141 Furthermore, in the event of conflicting rules of the applicable regimes of protection, thus when two different categorized elements are jointly infringed; the most stringent regime in light of protection of the applicable authors shall prevail. Such a principle coincides with the spirit of the European copyright law framework – a highest possible level of protection for the respective authors. As such protection helps to ensure the maintenance and development of creativity in the interest of authors and as such is an integral part of property. 142 The issue relating to potentially hundreds of different elements incorporated within a video game remains problematic. Especially within modern video games, the total amount of different elements are present in great numbers; and future video games may even incorporate significantly more. Thus, this may lead to an unpractical situation where courts and involved parties are tasked with classifying and describing each applicable individual element; leading to (legal) uncertainty and increasingly time-consuming disputes in courts.
141 Jonathan van Dooren, ‘De Juridische kawalificatie van video games’ (Masterthesis, University of Gent 2014) 27. 142 Ibid, 27-28; and Infosoc, s 9 of the preamble.
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6.4. Conclusion
Based on the findings of this chapter and chapter 5, it is evident that most Member States accept that video games consist of elements that fall within the scope of both the regime of protection of computer programs and the regime of protection of audiovisual works – the technical components versus the audiovisual elements. The unitary classification approach does not acknowledge the complexity of video games. Within the current copyright framework as set-out in this thesis, and notwithstanding the specific highlighted issues regarding video games and the regimes of protection as set-out in chapter 5, the distributive classification approach – including the applicability of both regimes of protection – seems to be the most favorable option of classification of video games.
Despite the early video game cases, most Member States apply and acknowledge the distributive approach of video game classification. Even the ECJ seems to favor the distributive classification approach. As established in this chapter, even the distributive classification approach does not come without its issues which may lead to legal uncertainty. For example, when a court is not able to determine which element, and thus, which regime is applicable in a specific case. In such a scenario, a “lex generalis” application of common copyright law (as a literary work) could apply instead. An additional issue would originate in the event of conflicting rules of the applicable regimes of protection. In such an event, the most stringent regime in light of protection of the applicable authors shall apply. However, the increasing amount of individual element in moderns (and future) video games continue to stress legal uncertainty and timely processing of distributive classification.
Lastly, based on the presumption of transfer of rights principles as set-out in this thesis, an employer in the gaming industry needs to be diligent when drafting labor contracts. When upholding a distributive approach, the presumption of transfer of rights to the employer as governed by the regime of protection of computer programs, do not necessarily apply to employees that would fall under the regime of protection of an audiovisual work. Consequently, the employer needs to ensure to incorporate specific provisions of transfer of rights for the (co-)authors contributing as e.g. a musical composer, script writer, producer, director to a video game.
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7. A tailor-made regime for video games?
Considering the complexity of applicable elements within video games, and the economic impact video games have, it might be valid to discuss the opportunity and possibility of establishing a specific regime of protection for video games itself on a European level with (full) harmonization to avoid any additional legal uncertainty between Member States. Thus, such a video game regime shall coexist with the regimes of protection of audiovisual works and computer programs. However, such an undertaking on a European (or even International) level would be extremely difficult to initiate and finalize; as all affected Member States would need to find complete consensus on the content of such a specific regime. Thus, this will not be a short term and easy undertaking.
Within such a regime, all specific issues arising in relation to a classification as an audiovisual work and/or computer program could be addressed. However, it would be extremely difficult to provide or draw exact recommendations for such a video game regime. Following WIPO, the following elements could be taken into account (however, a detailed analysis of the considerations in drafting such a specific regime falls outside of the scope of this thesis and would need further research):
- The developers/publishers (producers) are the entities that usually take the (financial) risks connected to the creation of a video game. Moreover, such entities provide the necessary resources. Consequently, these entities should, at the minimum, obtain all exploitation rights of a video game. This could be achieved with a provision on a presumption of transfer of such rights in favor of the video game producers. This would be equivalent to the presumption of transfer of exploitation rights as incorporated in the regime of protection of audiovisual works. Furthermore, it could be considered to allow producers to be an initial author themselves.143
- With regard to the other subjects involved in the creation of a video game (e.g. graphical designer, script writer, music composer), it would not be advisable to establish an exhaustive list of presumed (co-)authors. Instead, due to the complexity, and to ensure that such a regime is future proof, a case-by-case analysis should be undertaken in order to establish which actual contributors would qualify as
143 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 94.
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(co-)authors (equivalent to Article 45(a) AW). However, it would be recommended to at least incorporate a non-exhaustive list of the the-current most common contributors.144
- The producers should be able to obtain the exclusive (related) rights to authorize any reproduction, distribution, communication to the public or transmission of video games. 145
- The inclusion of a proportional remuneration scheme would be recommended. This would ensure a guarantee to a fair compensation to authors who have contributed significantly to the success of a video game. In this context, it should not matter whether these authors are employees, independent contractors or even (online) gamers.
- The current developments within the video game industry make it possible to record and broadcast gameplay of video games. Internet live-streaming is quite possible with the latest iteration of video game consoles, and we have seen an increase in major tournaments and seasonal leagues. Currently, most of these broadcasts are arranged through services like YouTube or twitch.tv, but in countries like the Republic of Korea these tournaments are being broadcasted in national television. Therefore, it would not be unrealistic to expect that these tournaments shall be broadcasted on television in European Member States as well. Thus, the policy makers might need to address the problems of which rights should be obtained by television networks of applicable internet websites (e.g. YouTube, twitch.tv).146
144 Ibid. 145 Ibid, 95. 146 A. Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO 95.
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7.1. Conclusion
Despite that such a specific tailor-made regime for video games would be a viable solution with regard to the discussion of video game classification within Europe, and would establish legal certainty within Europe if executed on a fully harmonized European level. However, as stated above, such an undertaking would be extremely difficult to initiate and finalize; as all affected Member States would need to find complete consensus on the content of such a specific regime.
Nonetheless, the current existing regimes of protection within the European copyright framework does allow for multiple ways of incorporation protection of video games. These classifications, as seen in chapters 5 and 6, do coincide with specific issues related to video games. Notwithstanding the issues in connection to a classification as computer programs and the specific problems arising with the qualification approaches as set-out in chapter 6, harmonization on the legislative framework of audiovisual works could suffice as an intermediate solution when working towards a complete tailor-made regime for video games. Said harmonization efforts on audiovisual works throughout Europe will at least create some legal certainty regarding the topics of presumption of authorship and audiovisual works lists.
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8. Conclusion
This thesis was set-out to answer the main question ‘Where do video games fall within the European copyright framework and are such works sufficiently protected?’. The journey to come to the answers to that questions has been facilitated by the sub- questions as set-out below. This chapter will reflect on the finding as established during this research per sub-question, and conclusively, that overview will be the answer to the main question as set-out above.
1. What amounts to a video game and what are the involved stakeholders of the video game industry?
Firstly, an overview has been provided which shows what amounts to a video game. What has been established is that video games are complex works, and the latest iterations of video games consist out of two main components: (1) the audiovisual elements (this includes sound, visual works and the graphical component); and (2) the software, which forms the underlying technical component to manage the included audiovisual elements of a video game and permits players to interact with all the elements of a video game – the “game engine”. Additionally, this thesis has shown the great variety of stakeholders involved within the gaming industry.
2. What is the relevant regulatory European framework with regard to copyright?
The European copyright framework has tackled the inherent topics of ownership, moral and economic rights, duration of protection, originality criterion, and related rights. These are mostly incorporated within the CPD, Infosoc and national legislation respectively. However, as seen in this chapter Europe has not accomplished full harmonization on all elements. This overview on the current copyright framework within Europe shall suffice as a theoretical basis to investigate how video games fit within this current legislative foundation. Moreover, this thesis established an overview of the general European legislative framework regarding the regimes of protection of audiovisual works and computer program. It has been identified that a classification of a work towards a certain regime of protection dictates which legislative rules apply with regard to authorship, transfer of (economic) rights and (proportional) remuneration. Consequently, depending on the work and specific case, certain stakeholders might lean towards a certain regime of protection to maintain a most favorable position in
57 relation to the rights of a work. In order to provide concrete examples of the implications of a classification as an audiovisual work or a computer program, references have been made to applicable national laws of The Netherlands and Belgium. Although only these two Member States were addressed, it is should be noted that these specific national laws can differ within Europe; there is a long way to full harmonization on the above-mentioned topics. Thus, leading to ambiguity within Europe for stakeholders operating on an international level. As reflected in chapter 1.3, it does not fall within the scope of this research to provide a detailed comparative analysis of such laws of Member States. The Legal Status of Video Games: Comparative Analysis in National Approaches published by the WIPO provides a more detailed overview that reflects this diversity amongst countries worldwide (including many Member States) on the topics discussed.
3. How should a video game be classified within the existing regimes of protection of audiovisual works and computer programs and does any classification within these regimes raise specific issues in relation to video games?
Based on the distinctive characteristics of video games, the current European copyright framework facilitates two regimes of protection to qualify video games – the regime of protection of computer programs and the regime of protection of audiovisual works. Although it could be argued video games (partially) fit within these regimes of protection, video game qualification as a computer program or as an audiovisual work introduces a myriad of issues that show these regimes of protection were not designed specifically to incorporate video games.
It seems that – for now - national courts within Europe have been able to overcome the issues relating to the specific classification requirements for audiovisual works (“series of related images” and “intended to be shown” in conjunction with the interactivity element of video games). Nonetheless, the rapidly growing (and already existing) forms of interactivity and the unharmonized legislation regarding audiovisual works within Europe stresses the classification of video games as an audiovisual work. Video games have evolved over the last 30 years, and earlier case law does not necessarily translate all that well anymore to the modern iterations of video games.
The classification of a videogame as a computer program seems to be easier, when the originality can be met by video games (and their preparatory materials). The lack of additional
58 classification requirements lead to a much lower threshold of qualification. However, specific issues such as, middleware, coding language, lack of remuneration schemes, and the specific exceptions as incorporated in Article 5 and 6 of the CPD, may stress the classification of video games as a computer program.
4. How do video games fit with these respective regimes of protection of audiovisual works and computer programs and how is this recognized by Europe?
Based on the findings of this research it is evident that most Member States accept that video games consist of elements that fall within the scope of both the regime of protection of computer programs and the regime of protection of audiovisual works – the technical components versus the audiovisual elements. The unitary classification approach does not acknowledge the complexity of video games. Within the current copyright framework as set- out in this thesis, and notwithstanding the specific highlighted issues regarding video games and the regimes of protection, the distributive classification approach – including the applicability of both regimes of protection – seems to be the most favorable option of classification of video games.
Despite the early video game cases, most Member States apply and acknowledge the distributive approach of video game classification. Even the ECJ seems to favor the distributive classification approach. However, as established the distributive approach does not come without its issues which may lead to legal uncertainty.
The first issue would occur when a court is not able to determine which element, and thus, which regime is applicable in a specific case. However, a “lex generalis” application of common copyright law (as a literary work) could apply instead. In the event of conflicting rules of the applicable regimes of protection, the most stringent regime in light of protection of the applicable authors shall apply.
The main issue remains with the increasing amount of individual element in modern (and future) video games. This increasing amount will continue to stress legal uncertainty and timely processing of distributive classification.
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Moreover, on the presumption of transfer of rights principles as set-out in this thesis, an employer in the gaming industry needs to be diligent when drafting labor contracts. When upholding a distributive approach, the presumption of transfer of rights to the employer as governed by the regime of protection of computer programs, do not necessarily apply to employees that would fall under the regime of protection of an audiovisual work. Consequently, the employer needs to ensure to incorporate specific provisions of transfer of rights for the (co-)authors contributing as e.g. a musical composer, script writer, producer, director to a video game.
5. Would a tailor-made regime be recommended?
Despite that such a specific tailor-made regime for video games would be a viable solution with regard to the discussion of video game classification within Europe, and would establish legal certainty within Europe if executed on a fully harmonized European level. However, as stated above, such an undertaking would be extremely difficult to initiate and finalize; as all affected Member States would need to find complete consensus on the content of such a specific regime.
Nonetheless, the current existing regimes of protection within the European copyright framework does allow for multiple ways of incorporation protection of video games. These classifications, as seen in chapters 5 and 6, do coincide with specific issues related to video games. Notwithstanding the issues in connection to a classification as computer programs and the specific problems arising with the qualification approaches as set-out in chapter 6, harmonization on the legislative framework of audiovisual works could suffice as an intermediate solution when working towards a complete tailor-made regime for video games. Said harmonization efforts on audiovisual works throughout Europe will at least create some legal certainty regarding the topics of presumption of authorship, and audiovisual works lists.
Conclusively, based on the findings as set-out above, the main question has been answered:
Where do video games fall within the European copyright framework and are such works sufficiently protected?
Admittedly, when going into the research on this topic, the expectation was that video games did not have sufficient protection within the European copyright framework. Instead, it would
60 almost be the opposite – there are too many ways of protecting video games under the current European copyright framework. This thesis has been limited to a classification as an audiovisual work or computer program. Although many issues arise and continue to arise when the rapid development of video games continues (and so do the involved stakeholders) when video games are classified within those two existing regimes of protection, the protection is there. The qualification approach that fits the best with video games is the distributive approach; which is complementary to the complex nature of video games. Notwithstanding the possibility to catch video games within the scope of these regimes, legal uncertainty is present. The majority of said legal uncertainty could be solved by better harmonization throughout Europe on the respective regimes. As this research only tackled the main issues with regard to video classification in relation to the regimes of protection of audiovisual works and computer programs, further research is required (e.g. in respect to the regime of databases). Moreover, a detailed comparative analysis of all applicable Member State laws would be an effective way to distill the major discrepancies between the Member States on these two regimes of protection. Such an analysis should go further than the current WIPO report on the legal status of video games.
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9. References
9.1. Books
T. Aplin and J. Davis, Intellectual Property Law: Text, Cases and Materials (OUP Oxford 2013)
L. Bently and B. Sherman, Intellectual Property Law (OUS Oxford 2004)
European Audiovisual Observatory, The Lifespan for Copyright of Audiovisual Works (European Audiovisual Observatory 2012)
S.L. Kent, The Ultimate History of Video Games: From Pong to Pokémon and Beyond-The Story Behind the Craze That Touched Our Lives and Changed the World (Prima Communications 2001)
A.S. Lipson and R.D. Brain, Computer and Video Game Law: Cases, Statutes, Forms, Problems & Materials (Carolina Academic Press 2009)
M. Manuela and others, Business, technological, and social dimensions of computer games : multidisciplinary developments (IGI Global 2011)
T. Prime, European Intellectual Property Law (Ashgate 2000)
S. Ricketson and J.C. Ginsburg, INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS: The Berne Convention and Beyond Second Edition (Oxford University Press 2005)
I.A. Stamatoudi, Copyright and Multimedia Products: A Comparative Analysis (Cambridge University Press 2001)
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9.2. Articles
M.G. Debono, ‘What’s in a Game? Intellectual Property Law for a Budding New Industry’ (FFF- Legal, 18 September 2013)
W.K. Ford, ‘Copy Game for High Score: The First Video Game Lawsuit’ (2013) 20 JIPLP A.W. Eichner, ‘Game Over, Insert Coin to Continue: Entering a New Era of Video Game Intellectual Property Enforcement’ (2013) 53 IDEA
D. Greenspan, ‘MASTERING THE GAME: Business and Legal Issues for Video Game Developers’ (2013) WIPO
F.W. Grosheide, H. Roerdink and K. Thomas, ‘Intellectual Property Protection for Video Games: A View from the European Union’ (2014) 9 JICLT
R.J. Gutowski, ‘The Marriage of Intellectual Property and International Trade in the TRIPs Agreement: Strange Bedfellows or a Match Made in Heaven?’ (1999) 47 Buffalo Law Review 60
I. Katsarova, ‘The challenges of copyright in the EU’ (2015) EPRS
G. Lastowka, ‘Copyright Law and Video Games: A Brief History of an Interactive Medium’ (2013) SSRN
G. Lastowka, ‘Minecraft as Web 2.0: Amateur Creativity & Digital Games’ (2011) SSRN
S. von Lewinski and M. Walter, ‘European Copyright Law – A Commentary’ (OUP 2010)
T. Margoni, ‘The Digitisation of Cultural Heritage: Originality, Derivative Works and (Non) Original Photographs’ (2015) SSRN 8
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Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) WIPO
9.3. Websites
Brookhaven National Laboratory,’ The First Video Game?’
E. Felten, ‘Source Code and Object Code’ (Freedom to Tinker, 2 September 2002)
GamesRadar, ‘The rise of linux as a gaming platform’
Havok, ‘Havok’
Infoplease, ‘Timeline: Video Games’
Minecraft, ‘Minecraft’
Naturalmotion, ‘Euphoria’
Newzoo, ‘Global Games Market Will Reach $102.9 Billion in 2017’
SecondLife, ‘SecondLife’
UnrealEngine, ‘Make Something Unreal’
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Venturebeat, ‘Mobile growth will fuel global game market that hits $86.1B by 2016’
9.4. Other Publications
Jonathan van Dooren, ‘De Juridische kawalificatie van video games’ (Masterthesis, University of Gent 2014) 27.
9.5. EU Legislation
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L167.
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs [2009] OJ L111 [hereafter “CPD”].
DIRECTIVE 2006/116/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2006on the term of protection of copyright and certain related rights [2006] OJ L372/12 [hereafter “Term Directive”].
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property [2006] OJ L376/28 [hereafter “Rental Directive”].
9.6. Other Legislation
Agreement on Trade-Related Aspects of Intellectual Property Rights (15 April 1994) UNTS 299 http://docsonline.wto.org.
Auteurswet (September 23 1912). Accessed June 2017
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Berne Convention for the Protection of Literary and Artistic Works (adopted 28 September 1979, entered into force 19 November 1984) TRT/BERNE/001 (Berne Convention).
Consolidated Text of the Law on Intellectual Property, regularizing, clarifying and harmonizing the Applicable Statutory Provisions (approved by Royal Legislative Decree No. 1/1996 of April 12, 1996)
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (entered into force 18 May 1964) 496 UNTS 43 (Rome Convention).
Paris Convention for the Protection of Industrial Property, as last revised at Stockholm (adopted 14 July 1967, entered into force 26 April 1970) 828 UNTS 305.
Treaty on the International Registration of Audiovisual Works (Film Register Treaty) (adopted at Geneva on 20 April 1989)
U.S. Code Title 17.
Wetboek van economisch recht
WIPO Copyright Treaty (adopted 20 December 1996, entered into force 6 March 2002) TRT/WCT/001.
WTO, ‘Overview: the TRIPS Agreement’
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9.7. Case law
ECJ
Case C-5/08 Infopaq International A/S v. Danske Dagblades Forening [2009] ECR I-06569
Case C 145/10 Eva-Maria Painer v. Standard VerlagsGmbH and Others [2011] ECR I-12533
Case C 393/09 Bezpečnostnísoftwarová asociace v Ministerstvo kultury [2010] ECR I-13971
Joined Cases C 403/08 and C 429/08 Football Association Premier League and Others v. Media Protection Services Ltd [2011] ECR I-09083
Case C‑ 406/10 SAS Instutiute Inc. v World Programming Ltd [2012] Digital Reports 2012
Case C 604/10 Football Dataco Ltd and Others v Yahoo! UK Ltd and Others [2012] Digital reports 2012
Australia
Case Sega Enterprises Ltd v. Galaxy Electronics Pty Ltd [1998] FCA 40
Belgium
Case BEA, Sega en Ubisoft v Bibnet [2014] 6 AM 48
France
Case Atari v. Valadon [1982] TGI 48, 31
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Germany
12 May 1992 ZUM 545, 546
Case Donkey Kong Junior [1983] OLG Frankfurt GRUR, 757
Case Pengo [1983] OLG Frankfurt GRUR 753
Case Super Mario III [1990] OLG Hamburg GRUR 127
UK
Case Nova Productions Ltd v Mazooma Games Ltd & Ors Rev 1 [2006] EWHC 24 (Ch)
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