On 24 April 2015, QMUL's Centre for Commercial Law Studies convened a group of legal experts to consider and examine issues around gaming an intellectual property law. In this article, Dr Gaetano Dimita, Lecturer in International Intellectual Property Law, sets out the many legal challenges that emerge from this growing and dynamic sector.
Britain is a nation of gamers. Research, carried out in 2014, found that 70 per cent of the population spends at least some of their time playing video games. Gaming is no longer solely the domain of teenagers and adults who ‘should know better’; it is a multi-billion pound industry that extends across every key demographic in British society. At an economic level, global sales outstripped movie purchases in 2008 and have been growing ever since. The UK gaming industry was worth more than £3.9 billion in 2014 and employs 20,000 people.
The UK is the world’s fifth largest video game market, and British developers have a long history of commercial and market successes; including well-known brands such as Tomb Raider, Grand Theft Auto, and Moshi Monster.
The word ‘innovation’ is now over-used to the point that it has almost been stripped of meaning; but the gaming sector is one of the most innovative and dynamic hubs of the modern economy. The market is buoyant, the industry continues to expand and recruit highly-skilled staff, and the technological and communications infrastructure is developing at a pace that would have been unimaginable just five or ten years ago.
Nevertheless, this rapid growth and the highly dynamic nature of the industry presents publishers, developers and gamers with as many challenges as it does opportunities. Many of these challenges are legal in nature, and intellectual property lawyers have found themselves at the centre of efforts to regulate, license and set standards within an industry that has few precedents.
When people think of lawyers, images of video games may not always follow, but for specialists in the area – and there is a small but growing number – interactive entertainment (gaming, in this case) is bursting at the seams with intellectual property. As the industry continues to innovate in response to a uniquely ‘in-touch’ and demanding customer base; creativity collides with the latest technology. The result is not just state-of-the-art games, but also a host of difficult, frontier legal issues.
Game cloning, ‘key selling’ (the sale of the twelve digit licence key that comes with the game), the second hand market, virtual property and personae. These are just some of the complex and difficult legal issues that the industry has thrown up for producers, suppliers and end users. These problems live not in the abstract or in the lecture theatre, but have profound repercussions for property law and our understanding of consumer transactions.
Even the definition of a game, and the category to which a game might belong, is controversial. Is a video game a work of art? Even if you think not – games are protected by and heavily reliant on intellectual property. An even more interesting question is whether the act of playing a video game, is itself an expression of art or creativity, and thus worthy of protection in its own right. To paraphrase Duchamp (who never played a video game) a video game is completed only when played, and some playing styles are clearly recognisable - even unique - with pro-players already reaching celebrity status.
On a more practical level, many gamers may not be aware of the implications of purchasing a physical copy of a game versus a digital download version. A digital version of a game is not necessarily cheaper, and yet gamers may not ‘own’ the game in the traditional sense, and are not necessarily privy to normal rights of reuse and resale.
Moreover, what happen to one’s account, avatar and all the virtual assets collected when the game provider decides to discontinue the game or close the business? Is everything lost?
These are just a few of the critical questions and issues that are forming the basis for many fascinating careers and discussions within intellectual property law. As an emergent area – and one that is shifting with every month – universities have a critical role to play as centres for discussion, debate and the sharing of best practice.
The Centre for Commercial Law Studies at Queen Mary University of London is at the fore of scholarly understanding and practice with regard to intellectual property and interactive entertainment. CCLS now runs a dedicated LLM module on Interactive Entertainment Law focusing on the IP, contract and regulatory aspect of video games and virtual worlds. On 24 April 2015, CCLS hosted an international seminar to address current and emerging issues in IP and interactive entertainment.
Dr Gaetano Dimita is a member of the Queen Mary Intellectual Property Research Institute (QMIPRI).
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