Copyright and the Finnish Gaming Industry
Can the intrinsic value of games be effectively protected by copyright?
The Finnish digital entertainment industry has risen to be a prominent player in the global video gaming markets. Games themselves have many functions, such as entertaining, educating or even promoting healthy life styles.
It is interesting that the product behind all this fuss, a game, has actually rather complicated the “love-hate relationship” with copyright protection. Considering the cultural and economic impact of the field, there has been relatively little discussion on the copyright protection that games obtain.
In this article I discuss the way games, as very unique products, receive protection under the Finnish Copyright Act and EU law.
Defining the copyrightable nature of games
One would not expect that this promising flagship industry of Finland is almost neglected in the Finnish Copyright Act. Fortunately, the list of copyrightable works is non-exhaustive, and games do receive copyright protection if they succeed in meeting the originality threshold and are seen as products of the creator’s intellectual creation.
However, due to the relatively recent emergence of the industry, the precise nature of games as protectable works is left open in the Copyright Act. Its travaux préparatories do not contain any indication to games either. In addition, there has yet been surprisingly little legal literature written about games.
Digital games contain underlying literary works, artistic works and sound recordings. Games are so-called compilation works that consist of many features such as storyline, user interface, computer programs, graphics, music and sounds. The individual elements of a game receive protection under copyright, given that they are copyrightable in the sense that they are original.
Games vary from minimalistic puzzle games played on handheld devices to photo-realistic first person shooters with complicated physics engines. Cinematically intensive games like Heavy Rain defy the traditional separation of games and movies, and external devices like instruments in Rock Band create a novel involving experience. What separates games from movies is the interaction between the player and the game.
Traditional films versus digital games
According to the statement given by the Finnish Copyright Council in 1992 (TN 1992:3), video games are protected as so-called collective works. This means that the elements of a game receive copyright protection independently from the aggregate work. Thus, the computer program receives protection as a literary work, individual images as pictorial works and music as compositions.
The Council reasoned that digital games differ from traditional films: without the actual act of playing, games do not involve an entity of moving images comparable to films. The entity formed of said images varies every time the game is played. It was also stated that the audiovisual representation of the game is not practically separable from the underlying computer program. The Council´s statement is, however, non-binding.
In Government proposal (HE 287/1994), in which games were specifically excluded from the scope of protection granted to cinematographical works, the reasoning stated that the visual content of games does not form a film-like entity, the purpose of which is to be viewed as such. In addition, it was underlined that the purpose of a game is to play it, whereas movies’ primary purpose is to be watched as such.
Nevertheless, it should be noted that the input of the player is processed by the underlying computer program, which has been carefully outlined by the game developer. Internationally, games have usually been defined as audiovisual works. It has also been debated in Finland whether digital games should receive protection as cinematographical works.
The presentation on a screen cannot satisfactorily be considered solely as separate still images without neglecting the true nature of a game. There have been some concerns that defining games as compilation works might have a negative effect on the way games are evaluated in terms of similarity in infringement cases, and even on whether games are considered to be copyright eligible at all.
Games should be evaluated as one entity, instead of separate elements, as otherwise the protection is incomplete. The current concept is quite an unnatural way to approach the issue, as the graphics, the sounds and the story of a game are likely to lose their original purpose if detached from the compiled piece of software. Therefore, the legislature should reconsider the position of games in the Copyright Act to avoid confusion in this evolving field.
Ideas in a game are not protected
In a good game really valuable is the playing experience as whole. The basic idea behind a game is often quite simple. Classic games such as Super Mario Bros of Nintendo and Sonic the Hedgehog of Sega Corporation ultimately differ very little from each other: both are platform games with easily distinguishable mascots. If ideas were not excluded from copyright protection, competition would be promptly limited, because the number of productive game ideas is presumptively limited. Simple game ideas with appealing expressions create popular games.
Storyline, distinctive characters, music and game environment contain features that are expressions of ideas. It is said that copyright does not protect ideas, but it does protect the specific way these ideas are expressed. A unique combination of elements in a game may be subject to protection. For example, the Angry Birds character “red bird” could be subject to protection as a combination of features, because it consists of many recognizable elements: angry looking eyes, red color, round-like shape, its sounds, and different facial expressions. Protecting such a bird character would not ban someone else from creating a red colored bird character with a different combination of features, but it would prohibit one from using the same combination for a similar character. Once ideas, plots, elements and rules of a game are voluntarily expressed to others, everyone can freely utilize them.
Separating ideas from expressions is difficult in practice. One interesting example comes from the United States. A giant game company Electronic Arts (EA) sued its competitor Zynga, claiming that Zynga had infringed EA’s copyright by creating a game called “the Ville”, which resembled EA´s popular life simulator game “Sims” remarkably. Zynga answered the complaint by stating that there is nothing “original” in the “Sims”, and that any similarities between “the Ville” and “the Sims Social” are simply standard elements of the life simulation genre, and are thus not protected by copyright law.
Certain things are generally natural for human beings and needed to simulate human life, such as gender, hair color, going to work or having a kitchen with an oven. It is hard to define when the expression of such elements is unique and original enough to receive protection. Nevertheless, it was undeniable that the two games were, if not identical twins, clearly related. The court case was settled, like game cases often are, which leaves us wondering what kind of interpretation the court would have given. It may be that EA avoided a bitter loss by settling the case, but there is still a need for defining the boundaries between merely imitating competitors’ ideas and infringing protectable expression.
Is copyright enough?
Before striving game developers hop on the band wagon of creating ”Angry Cats” games in hopes of easy income, one has to note that trademark, design protection and sometimes even patents are used to shield the limited copyright core of protection.
Nevertheless, copyright still offers an easy approach especially for new game developers to protect their games, owing to its effortless birth and perhaps just sufficiently undefined nature. After all, the frightening presence of copyright protection may, regardless of its strength in practice, just be enough to prevent the copyist from copying in the first place.
Law student, University of Turku
The writer of this article worked as a trainee at IPR University Center in summer 2013. This article is based on her seminar work “Copyright and the Gaming Industry: Issues of the Idea/Expression Dichotomy” that she had written for the special course “Information Law in Europe and Beyond: Current Issues and Perspectives” at Turku Law School.
The Finnish Gaming Industry: Finnish Games Industry 2013:
KooPee Hiltunen, Suvi Latva & Jari-Pekka Kaleva: Peliteollisuus – kehityspolku (Tekes, Katsaus 303/2013):