Introduction
The Indian gaming market has picked up great pace in the past decade. From a 4 billion Indian Rupee gaming industry in 2007, to a 62 billion Indian Rupees industry in 2019, gaming in India has certainly caught the eye of consumers and proves to be a valuable market today.1 Mobile gaming in India has been particularly on a steady rise, mostly arising out of the fact of how accessible a smartphone is today. In 2017, the mobile gaming market in India was worth just 600 million dollars. It is projected to cross a worth of more than 2.4 billion US dollars by the end of 2020.2
In the past two months during the nation-wide lockdown, mobile gaming has greatly seen a huge increase among smartphone users. Apps like ‘Ludo King’, ‘Carrom Pool’ and ‘PUBG’ have seen a rise in the daily number of users active online, with Ludo King founder reporting an increase from 13 million active users to 50 million active users after the start of the national lockdown.3
With spaces for advertisers to advertise and options for purchasing additional content for such games with real money, the industry has definitely become a profitable business. Even sales of board games have increased ever since platforms such as Big Bazaar, Paytm and Snapdeal have been allowed to sell non-essential items during the national lockdown.4
However, as happens with a popular and booming market, there always appear individuals keen on passing off the original work of another as their own. This issue of copyright infringement has come to the gates of the gaming industry as well. As with our other national laws, copyright law has increased in its scope through the application of judicial precedents. While the Indian Copyright Act, 1950, needless to say, did not envision the era of digital gaming, judicial precedents have made copyright laws applicable on games. The case in point here is that of Mattel v. Jayanth Agarwalla.5
Analysis of Mattel v. Jayanth Agarwalla
The case of Mattel v. Jayanth Agarwalla, was a Delhi High Court decision over the issue of the toy manufacturing giant, as also the plaintiff, Mattel’s game called ‘Scrabble’ being reproduced by the defendants in another name but with the same concept as Mattel’s game along with the same arrangement, design and colour of the tiles on the board. The issue was one of copyright infringement by the defendant.
While the court did not grant copyright protection to the plaintiff’s game, in doing so it noted a few important things. Firstly, the requirement of ‘originality’ was missing from the plaintiff’s game. The court stated that merely placing tiles in a mechanical manner would not entitle one to copyright protection over the placement, design and colour of the tiles. There has to be some intellectual effort, as the court noted by citing the case of Eastern Book Co.6 where it was held that what is required for protection under copyright is an exercise of judgement and skill such that the work produced is not merely a mechanical exercise but involves some intellectual effort.
The court also stated that the doctrine of merger would apply in the present case. According to the doctrine, if an idea can only be expressed in some few forms, then protecting one of such few forms would basically mean protecting the idea itself. It would be meaningless in such a case to provide copyright protection as that would entail the curtailment of the freedom of expression as well. The court in this case placed reliance on an American case (Atari v. North American Philips7) to state that copyright protection cannot be extended to a game with general ideas and rules as doing so would mean applying the doctrine of merger.
The same idea is captured in the expression ‘Scenes a faire’. Duhaime’s Law Dictionary defines the expression as being those elements of an original work which are so common in nature that they cannot be protected under copyright.
In the case of Mattel, it was held that the rules of the game involving the creation of new words from a set of given letters with points for the bigger or more complex a word is made, are trite in nature and hence cannot be afforded any copyright protection. Further, it stated that if rules as abstract as these were to be given copyright protection, it would mean giving copyright protection to an idea as these rules form the only way of expressing such an idea. The court concludes by stating that the protection to the expression of ideas was not something which the lawmakers intended and hence the copyright claim of the plaintiff was rejected in this case.
The Applicability of the Mattel Case in the Digital Gaming Industry
When we interpret the ‘Scenes a faire’ doctrine applied in the Mattel case, we find that the doctrine can also apply to specific genres of games such as first-person shooter (FPS) games or golfing games. The elements in these games such as guns and explosives in FPS games and golf clubs, golf balls, the green pitch, water, etc… in golf games, are not per se copyrightable as these are elements common to such genres of games. Racing games, for example, require the common elements of a race track, cars, speedometers, etc.
Thus, in the realm of what is not copyrightable, one thing becomes more clearer than others. Game mechanics cannot be copyrighted. A fitting example for similar gameplay mechanics is between the games of Player Unknown’s Battlegrounds (PUBG) and Fortnite. Both games feature similar gameplay mechanics in that both revolve around the idea of having several players online in a shooting match to the death with the addition of the player map being reduced in size every few minutes. Although the concept of both the games are the same, no particular company can own a right to this concept.
It is due to this reason that there are so many games on the Apple App Store or the Google Play Store which sell the same concept but have different modes of letting the user experience the same concept. Copyright claims, thus, cannot be claimed against developers of such games.
In spite of this wide freedom found in the realm of fair use, there are certain things which are copyrightable in games. These include the characters, the story, the plot, the level design, the sounds and music used, the visual design and the game code itself.8 Different elements of a game are protected under different sections of the Indian Copyright Act, 1955. For example, the game code can be protected under Section 13 of the Act as a literary work while the sound and music design of the game can be afforded protection as a musical work.
What Lies Ahead for Copyright Protection in Digital Gaming
Today, the gaming industry has definitely boomed and is on a steady rise ahead. Modern games are both a work of audio-visual art as well as a computer programme and hence copyright protection afforded to games can become tricky. The Berne Convention in Article 2 does provide certain reasonable ground for video games to be copyrighted.9
However, India lacks established laws relating to protection of copyright in gaming. While the titles of popular games can be protected under the Trademark Act, 1999, the issue of protecting a game developer’s expression of a unique idea whether in the sense of developing a new concept or game mechanic, which as we saw above is not afforded copyright protection, or in the sense of introducing unique elements to a game such as sound and art design, need a proper law to grant proper protection.
Although the Indian Copyright Act can protect video games as artistic works, the law is not clear on video games and there exist no specific regulations related to the gaming industry on matters of IP protection. While the game code can be protected as a literary work by way of the definition of a ‘literary work’ under Section 2(o) to include computer programming codes, various other elements such as a game’s animation or artwork find it more difficult to obtain copyright protection.
With the rapid rise of gaming industries in India as well as the sudden rise and huge potential for the mobile gaming industry in India, laws should effectively be expanded for the protection of the developers of the game. What is required most, however, is for the government to introduce regulations relating to granting copyright protection for developers of games.
- Sanika Diwanji, Value of the gaming industry in India 2006-2024, Statista (October 25, 2019), https://www.statista.com/statistics/235850/value-of-the-gaming-industry-in-india/.
- Sanika Diwanji, Mobile gaming revenue in India 2014-2020, Statista (September 23, 2019), https://www.statista.com/statistics/550877/mobile-gaming-revenue-india/.
- Anuka Roy, Ludo Wins Big During Lockdown, Mumbai Mirror (May 10, 2020), https://mumbaimirror.indiatimes.com/others/sunday-read/ludo-wins-big-during-lockdown/articleshow/75653005.cms.
- Writankar Mukherjee, Ratna Bhushan, Indians hooked to games during lockdown; highest ever sales and gaming app downloads, The Economic Times (May 12, 2020), https://economictimes.indiatimes.com/tech/software/indians-hooked-to-games-during-lockdown-highest-ever-sales-and-gaming-app-downloads/articleshow/75682901.cms.
- IA No. 2532/2008 in CS (OS) 344/2008.
- Eastern Book Company & Ors. v. D.B. Modak & Anr., AIR 2008 SC 809.
- 672 F.2d 607.
- Reetika Wadhwa and Meril Mathew Joy, Copyright in the Gaming Industry, Lexology (December 26, 2019), https://www.lexology.com/library/detail.aspx?g=f1262da5-64af-4ec3-8781-d33315eb6442.
- Article 2, The Berne Convention for the Protection of Literary and Artistic Works, 1886.
This article is written by Deeksha Singh & Yashwardhan Singh of SLS, Pune.
Disclaimer: This article is an original submission of the Author. Lex Insight does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns. You may also refer to our Copyright regulations. Image used is for representational purposes only.
