One of the few industries that has been positively impacted by the pandemic since the beginning of last year is the gaming industry. In the era of coronavirus, people have become increasingly willing to play video games as a relatively inexpensive and widely available form of entertainment. Therefore, video games have become an interesting topic for business and law.
In today's post, I'd like to examine computer games (hereinafter referred to as games) from a copyright perspective. We'll focus on what constitutes a computer game under the Copyright and Related Rights Act (hereinafter referred to as the Act) and what specific provisions apply to them.
Let's start with the fact that the Act doesn't include the terms "computer game" or "video game." They don't provide a definition. Furthermore, no such legal definition can be found in any other Polish legal act. Therefore, when analyzing copyright issues, it's first necessary to determine which of the forms of expression provided for in the Act best describes a computer game.
It seems most accurate to consider a computer game a computer program and apply its own rules to it. Similar to program creation, a game creates elements such as source code , object code , and firmware . Therefore, in this programming sense, a computer game should indeed be treated as a computer program .
However, games are a very complex creative product and, in addition to the elements characteristic of a computer program, they also contain elements characteristic of an audiovisual work, such as graphics, sound, and plot. In this context, it is worth considering the judgment of the European Court of Justice of the European Union of 23 January 2014 (C-355/12)*, in which " (...) video games (...) constitute complex material comprising not only a computer program but also graphic and audio elements which, although encoded in a programming language, have an inherently creative character that cannot be reduced to the aforementioned encoding alone. To the extent that a video game, in this case its graphic and audio elements, contribute to the originality of the work, they are, together with the work as a whole, protected by copyright under the regime established by Directive 2001/29. "
The content of the above-mentioned judgment clearly shows that a video game consists of:
- elements characteristic of a computer program
- elements that are not computer programs – including graphics and sound, which may be of a creative nature
Interestingly, the components of a video game were also listed in the individual tax ruling issued by the Director of the National Tax Information Service on January 24, 2020. According to the aforementioned ruling, a computer game includes, in particular: the game engine and logic, the game interface, the script, graphic objects, and sound objects**. As can be seen, both concepts are similar.
To summarize the above analysis, it can be concluded that, in the programming layer of games, the specific provisions regarding computer programs will apply, i.e., the provisions of Chapter 7 of the Act***. In the remaining scope: graphics, sound, plot, etc., provided these elements are creative in nature, the provisions regarding audiovisual works will apply, i.e., the provisions of Chapter 6 of the Act.
Finally, it is worth adding that, according to the CJEU ruling of 22 December 2010 (C-393/09)****, a graphical user interface does not constitute a form of expression of a computer program and cannot benefit from the copyright protection granted to computer programs under this directive. This does not change the fact that it can benefit from copyright protection as long as it meets the conditions for recognition as a work.
This alert is for informational purposes only and does not constitute legal advice.
*Judgment of the CJEU of 23 January 2014 in case C-355/12 – Nintendo Co. Ltd, Nintendo of America Inc., Nintendo of Europe GmbH v PC Box Srl, 9Net Srl
**Letter of 24 January 2020 from the Director of the National Tax Information 0114-KDIP2-1.4010.480.2019.2.JS
***“Copyright classification of computer games – computer program or audiovisual work?”, author: Sebastian Wiśniewski
****Judgment of the CJEU of 22 December 2010 in case C-393/09 – Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury.
