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IP in Game Industry

Devon

Clerics

Agate Studio

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HOW TO AVOID COPYRIGHT INFRINGEMENT?

Wiradeva Arif Kristawarman

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Introduction

• Legal issues is essential to success in game industry

• Mistakes can cost game developers in legal fees and damages

• Legal matters in game development are frequently complex and we should not rely on the information, we should consult with experienced counsel.

• Copyright is one kind of Intellectual Property (IP), besides trademark, patent, industrial design, etc.

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Copyright Law

• Important for we as a game developer or publisher to familiar with the basic principles:

– Multimedia works such as games are created by combining “content” – music, text, graphics, illustrations, photographs, software – that is protected under copyright law.

– Original games are protected by copyright. The Copyright Act’s exclusive rights provision gives game developers and publishers the right to control unauthorized exploitation of their works.

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BASIC PRINCIPLES

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Works Protected

• Copyright protection is available for “works of authorship”. Works of authorship include the following types of works:

– Literary works

– Musical works

– Dramatic works

– Pantomimes and choreographic works

– Pictorial, graphic, and sculptural works

– Motion pictures and other audiovisual works

– Sound recordings

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Works Protected

• Example: – content of the game will encompass the script that

describes the interactive pathways of game play that are the basis of the game (a ‘literary work’ or ‘dramatic work’),

– images of the characters and the artwork that creates the world of the game (‘artistic works’).

– completed visual elements of the game will be regarded as a (‘cinematographic film’)

– code that governs the way in which the player interacts with the game which requires programming codes that are also separate copyright works

– BGM and sfx used in the game (‘musical works’).

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Obtaining Copyright Protection

• Arises automatically when an “original” work of authorship is “fixed” in a tangible medium of expression. Registration is optional (we have to register before we file and infringement suit).

– Originality: it owes its origin to the author and was not copied from some preexisting work.

– Fixation: it is made “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more that transitory duration.

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Scope of Protection

• Protect against copying the “expression” in a work, not against copying the work's ideas. The difference between "idea" and "expression" is one of the most difficult concepts in copyright law.

• The most important point to understand is that one can copy the protected expression in a work without copying the literal words (or the exact shape of a sculpture, or the exact "look" of a stuffed animal). When a new work is created by copying an existing copyrighted work, copyright infringement exists if the new work is "substantially similar" to the work that was copied. The new work need not be identical to the copied work.

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Exclusive rights in copyright • Reproduction Right: copy, duplicate, transcribe, or imitate the work in

fixed form. • Modification Right : modify the work to create a new work. A new work

that is based on a preexisting work is known as a "derivative work." • Distribution Right :distribute copies of the work to the public by sale,

rental, lease, or lending. • Public Performance Right :recite, play, dance, act, or show the work at

public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images in sequence is considered "performance."

• Public Display Right : show a copy of the work directly or by means of a film, slide, or television image at a public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images out of sequence is considered "display."

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Copyright Ownership in games development

• If the work was prepared by an employee, then the employer is automatically considered the author, unless there is an express written agreement otherwise.

• If the work was prepared by an independent contractor, the work is owned by the independent contractor, unless it is a specially ordered or commissioned work.

• The Copyright Act delineates nine (9) specific categories of “specially ordered or commissioned” work and requires an express written agreement between the parties for a work prepared by an independent contractor to be considered a work for hire. The specially ordered and commissioned works are works for use as:

1. a contribution to a collective work, 2. a part of a motion picture or other audiovisual work, 3. a translation, 4. a supplementary work, 5. a compilation, 6. an instructional text, 7. a test, 8. answer material for a test, or 9. an atlas.

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Moral Right

• If you make a creative work, you have certain ‘moral rights’ as the ‘author’ of that work whether you created it as an employee or a contractor. You retain those moral rights even where your employer owns the copyright in your work or you have assigned that copyright. Moral rights recognise your ongoing connection with your creative work, and there are 3 types: – Right of attribution: you can make sure that you are named and

acknowledged for your work. – Right against false attribution: you can stop other people from

claiming that they created your work. – Right of integrity: you can stop your work being used in a way

that harms your honour or reputation.

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Technological protection measures

• The Copyright Act 1968 (Cth) allows copyright owners to use digital locks to stop their material being accessed or copied.

• An access control TPM prevents a person from being able to view or listen to the material, except when using the appropriate access code.

• The sale and use of ‘mod chips’, game enhancers, custom firmware and boot disks, that allow video games systems to play backup or import versions of video games, will probably breach the TPM provisions of the Copyright Act.

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EULA and user created content • These types of agreements are used to create the agreement

between the producer/operator of an online game such as a Massively Multiplayer Online Roleplaying Game (MMORG) and the purchaser/player of the game. The contents of the EULA, or the terms of use, set out the legal basis of the relationship between the producer/operator of the MMORG and the user.

• It is important to read the EULA, in particular to learn how the ownership of ‘user created content’ is described in the EULA. The terms of use of some MMORGs assert that copyright in all virtual assets used in the game, including user created content, is held by the operator of the MMORG. In contrast, the EULA of other MMORGs acknowledge that users own the copyright in the user created content and allow user to engage in transactions with other users of the MMPRG using the ‘in world’ currency.

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AVOIDING COPYRIGHT INFRINGEMENT

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Copyright infringement

• Anyone who violates any of the exclusive rights of a copyright owner is an infringer.

• Example: Developer scanned Photographer's copyrighted photograph, altered the image by using digital editing software, and included the altered version of the photograph in a game that Developer sold to consumers. If Developer used Photographer's photograph without permission, Developer infringed Photographer's copyright by violating the reproduction right (scanning the photograph), the modification right (altering the photograph), and the distribution right (selling the altered photograph in his game).

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Copyright Infringement • Just because you have the technology to copy these works, that

does not mean you have the legal right to do so. • Most of the third-party material you will want to use in your game

is protected by copyright. Using copyrighted material without getting permission - either by obtaining an "assignment" or a "license"- can have disastrous consequences. An assignment is generally understood to transfer all of the intellectual property rights in a particular work (although an assignment can be more limited). A license provides the right to use a work and is generally quite limited.

• If you use copyrighted material in your game without getting permission, the owner of the copyright can prevent the distribution of your product and obtain damages from you for infringement, even if you did not intentionally include his or her material

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Myths in Copyright Infringement

• Myth #1: "The work I want to use doesn't have a copyright notice on it, so it's not copyrighted. I'm free to use it."

• Most published works contain a copyright notice. However, for works published on or after March 1, 1989, the use of copyright notice is optional. The fact that a work doesn't have a copyright notice doesn't mean that the work is not protected by copyright.

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Myths in Copyright Infringement • Myth #2: "I don't need a license because I'm using only a small

amount of the copyrighted work." • True that de minimis copying (copying a small amount) is not

copyright infringement. Unfortunately, it is rarely possible to tell where de minimis copying ends and copyright infringement begins. Copying any part of a copyrighted work is risky. If what you copy is truly a tiny and nonmemorable part of the work, you may get away with it (the work's owner may not be able to tell that your work incorporates an excerpt from the owner's work). However, you run the risk of having to defend your use in expensive litigation. If you are copying, it is better to get a permission or a license (unless fair use applies). You cannot escape liability for infringement by showing how much of the protected work you did not take.

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Myths in Copyright Infringement

• Myth #3: "Since I'm planning to give credit to all authors whose works I copy, I don't need to get licenses.”

• If you give credit to a work's author, you are not a plagiarist (you are not pretending that you authored the copied work). However, attribution is not a defense to copyright infringement.

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Myths in Copyright Infringement

• Myth #4: "My game will be a wonderful showcase for the copyright owner's work, so I'm sure the owner will not object to my use of the work.”

• Don't assume that a copyright owner will be happy to have you use his or her work. Even if the owner is willing to let you use the work, the owner will probably want to charge you a license fee. Content owners view multimedia as a new market for licensing their material.

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Myths in Copyright Infringement

• Myth #5: "I don't need a license because I'm going to alter the work I copy.”

• Generally, you cannot escape liability for copyright infringement by altering or modifying the work you copy. If you copy and modify protected elements of a copyrighted work, you will be infringing the copyright owner's modification right as well as the copying right.

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When I don’t need a license? • Fair Use

– If your work serves traditional "fair use" purposes - criticism, comment, news reporting, teaching, scholarship, and research - you have a better chance of falling within the bounds of fair use than you do if your work is a sold to the public for entertainment purposes and for commercial gain. Consequently, the use of copyrighted materials in most games does not qualify for fair use.

• Public Domain – Works enter the public domain in several ways: because the term of the copyright

expired, because the copyright owner failed to "renew" his copyright, or because the copyright owner failed to properly use copyright notice.

• Is Factual or an Idea – This is because copyright protection is limited to original works of authorship, and

no one can claim originality or authorship for facts. You are free to copy facts from a copyrighted work.

• Creating Your Own Work :D