Introduction
In the bustling world of game development, creativity often takes centre stage as developers strive to innovate and captivate players with unique gameplay experiences. However, behind the scenes, there's a quieter battle brewing—a battle over the cloning of games and the ethical and legal implications surrounding intellectual property rights.
Games such as PUB-G (Player Unknown's BattleGrounds), Call of Duty, and Valorant have been dominating the Indian gaming industry for a long time. Following the Indian government's recent ban on PUBG, various alternatives including BGMI, FAU-G (Fearless and United Guards) and Fortnite, quickly emerged to fill the void in the market. While developers meticulously try protect their in-game components against intellectual property infringements, the issue of game cloning presents a significant challenge to the protection of such property.
Though some clones improve upon their predecessors and gain market acceptance, this practice often infringes on IP rights, undermining the original creators' efforts and discouraging innovation. This blog delves into the complexities of game cloning, examining the legal grey areas, the impact on the industry, and the measures developers can take to protect their creations.
What is Game Cloning?
A game usually encapsulates the protectable "expression of the idea" and the unprotectable "idea" of the video-game called the gameplay. This part is the combination of game mechanics, objectives, rules, rewards, challenges, and penalties employed in a specific videogame, which is manifested through the audiovisual displays generated during player interaction1. The term, game cloning refers to "video games that copy salient aspects of other games' mechanics, graphics, or stories in order to piggyback on their financial successes"2.
These indie apps avoid duplicating the protectable components of a game, such as the frames, sounds, or computer code. Instead, they replicate the gameplay, which has been determined by the courts to fall outside the bounds of copyright protection. As the game development duration increases, not only is there a decrease in the useful time of the game but also, an increase in ease of copying games. This influx of copycat games in the mobile space brings with it new legal questions- 'Are these clones merely off-brand digital replicas or are they blatantly theft without any legal discourse?'3
Gaming and IPR: The grey areas?
'Intellectual Property Rights (IPR)' are legal mechanisms designed to safeguard the creations of the mind, providing creators exclusive rights to utilize and disseminate their works.
Historically, video games have been safeguarded through both copyrights and patents. However, with the advent of the gaming culture, a wide range of intellectual property rights can be claimed to safeguard a game's unique components.
Copyright
'Determining the exact scope of copyright protection for a given work requires drawing a line between the expressive elements of the work, which can be protected, and the underlying ideas in the work, which cannot be'6. Copyright protection for video games generally manifests in two ways: safeguarding the 'code as a literary work' and protecting the 'game as an audiovisual creation'7. The doctrine of Scčne Ŕ Faire distinguishes copyrightable material from those which cannot be copyrighted. While audiovisual display, such as graphics, music, and sound effects and the source code are protected, the current copyright laws remain silent on the gameplay mechanics of the game itself.
-Patents
Patents protect the functional and technical aspects of video games, such as novel gameplay mechanics, unique algorithms, and innovative software features. It is essential to determine that a computer program per se, is not eligible for patent protection. Nevertheless, if a connection can be established with the ancillary hardware components, a patent may be granted8. In
-Trademark
Trademarks protect brand identity, including game titles, logos, character names, and other branding elements. In
-Industrial Design
The Designs Act, 2000 safeguards the visual aspects of games, including their visual interfaces and game covers. The design of a game incorporates the graphic characters, colours, animation and other creative aspects of the game.
Game Cloning- The violations?
The paradigms of both customers and developers in the video game industry are somewhat ambiguous. On one hand, they oppose unethical developers who engage in game cloning. On the other hand, they value the effort, creativity, and originality in game clones, particularly when these clones surpass the quality of the originals.
By replicating protected elements of original games without authorization, cloners infringe various intellectual property rights (IPR) reserved for the developers of the game. This often involves copyright infringement, where cloners copy unique game aspects such as artwork, music, character designs, and gameplay mechanics.
Trademark infringement occurs when cloned games use similar titles, logos, or branding, causing consumer confusion and unfairly benefiting from the original game's reputation. For instance, the
However, there have been instances where cloned games have surpassed the originals in quality. Games like "
The standard of gameplay is ultimately determined by the developer's level of creativity. A game does not need to be entirely different from its predecessor to be successful. Enhancing an existing game and providing it with additional advantages to attract more customers is a demonstration of creativity, not just imitation. Such qualities lead customers to appreciate both the ethically cloning developers and the original creators. For instance, clone of 'Diablo' outperformed the original version of the game. Nevertheless, it is crucial to note that in the gaming industry, cloning remains problematic. It discourages innovation and jeopardizes the creative efforts necessary for developing new and original games.
Conclusion and Way Forward
In this fiercely competitive gaming industry, companies must stay attuned to gamers' expectations to survive. However, that should not come at the cost of depriving developers of their well-deserved intellectual property protection. The IP laws, encompassing copyrights, patents, and trademarks, safeguard games from conception to completion. Without this protection, the gaming industry would falter, as innovation and creativity would be curtailed. Discouraging game cloning is essential to maintain a fair market, ensuring that original creators receive due recognition and rewards, thus fostering a vibrant, dynamic gaming landscape.
With the infringement risks in mind, few steps can be undertaken by developers to protect their games from being cloned15. These include:
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Including greater protections in the Non-disclosure Agreement (NDA) pertaining to disclosure of confidential data with potential partners. Copying in respect to the game's unique components should be clearly defined and clause specific to remedies in case the game gets cloned should be incorporated.
- Registering IP to have a more robust legal standing in the event of an infringement.
- Patenting of the specific-in-game elements whichever possible.
- Dismantling the source code to avoid reverse engineering16.
Footnotes
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6. Baker v. Selden,
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8. The Patents Act, 1970 § 3(k), No. 39, Acts of
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10. The Trade Marks Act, 1999 § 30(2)(d), No. 47, Acts of
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12. LiveLaw, www.livelaw.in (last visited
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15. Supra Note 3.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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