Some of the first associations that come to mind for "ordinary" gamers when they hear the term "computer games" are likely fun, a way to unwind after a hard day at work, and the adrenaline rush of competition. However, for game producers in particular, besides captivating and engaging gameplay, gaming-related rights, especially copyright, should be an important consideration. Considering the incredibly dynamic growth of the computer games industry and the revenue generated by the sector, it's worth considering this issue, which is interesting from the perspective of players, developers, producers, and lawyers, particularly in terms of the classification of computer games in the world of copyright.

AND.

So what is a computer game from a copyright perspective (Act of 4 February 1994 on Copyright and Related Rights, Journal of Laws of 2021, item 1062)? It's important to note the complexity of a computer game, whose elements include sound, video elements (animations), text, and the heart of the game, i.e., the code, the so-called game engine – of course, this is a greatly simplified representation. The prevailing view in legal literature is that a computer game should be protected as a multimedia work in its entirety, but the good news, particularly for game creators/developers, is that each component of a game can be protected by copyright. Leaving aside doctrinal issues regarding the classification of games in the legal system, it should certainly be pointed out that the discrepancies in legal doctrine regarding the qualification of games as multimedia works result from their considerable complexity, expressed by the multitude of different types of creative contributions.

II.

Computer games are also considered from the perspective of computer programs. Here, the Berne Convention explicitly stipulates that computer programs are protected by copyright, which was implemented and legally regulated by the Council Directive of 14 May 1991 on the legal protection of computer programs (Article 1, paragraph 1). This Directive obligates Member States to treat and protect computer programs in the same way as literary works. Similar regulations have also been adopted under international conventions, including the particularly important TRIPS Convention (Agreement on Trade-Related Aspects of Intellectual Property Rights). Specifically, Article 10, paragraph 1, states: "Computer programs, whether in source code or object code, shall be protected as literary works under the Berne Convention." It should be pointed out with full certainty that such a formulation should be understood as follows: unless the provisions provide otherwise, the provisions regulating the protection of computer programs apply to computer programs and computer programs should not be treated equally to literary works - this type of approach seems to be the most logical.

III.

The same applies to the case described above when attempting to classify a computer game as an audiovisual work. A work is considered audiovisual when:

a) It is an image/images;
b) It is expressed as a sequence (images follow one another);
c) When played back, they create an impression of movement (when what we see comes together into a whole, e.g. tells a story; or such an impression is created through editing);
d) They have a sound layer or they do not have a sound layer;
e) They are recorded on any medium.

Considering the above, it could be argued that computer games are similar to audiovisual works, but there are certain differences that, according to Polish law experts, do not allow for such a classification. Here, I will refer to section 2 of this article, where I addressed the issue of computer software, which is an essential element of every computer game, but we cannot assign such a designation to an audiovisual work.

IV.

As the above discussion indicates, legal doctrine is inconsistent regarding the classification of computer games into one of these categories. It should be noted that these are not all possible classifications, but rather those that are most popular. It seems most appropriate to refer to computer games in a manner similar to the Court of Justice of the European Union, which, on January 31, 2014, in the case of Nintendo Co. Ltd v PC Box Srl and 9Net Srl, indicated that "video games (...) constitute complex material comprising not only a computer program but also graphic and audio elements which, although encoded in a programming language, are inherently creative and cannot be reduced solely to the aforementioned encoding."

V.

So what is the place of a computer game in Polish law? It's impossible to answer this question unequivocally, but it can be stated with certainty that computer games possess the characteristics of various types of works defined by the Act of 4 February 1994 on Copyright and Related Rights (Journal of Laws of 2021, item 1062), which supports their recognition as so-called hybrid works. But who knows, maybe in the future the legislator will be tempted to distinguish a computer game as a separate type of work.

This alert is for informational purposes only and does not constitute legal advice.

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