International Game Developers Association

Contents 1 Copyright 1.1 What Does Copyright Protect? 1.2 What Rights Does Copyright Confer? 1.3 What Are The International Differences In Copyright Law? 1.4 Copyright Protection in the US 1.5 Copyright Protection in the UK & Europe 1.5.1 What does 'harmonisation' mean at a practical level?

Copyright

Copyright is a set of property rights created by statute that give the copyright owner exclusive rights to authorise or prohibit others from exploiting a copyright work. These rights include the right to copy, rent, perform or broadcast a work, issue copies of the work to the public, or make an adaptation of the work.

There is no need to register copyright to obtain protection. The rights granted by copyright arise automatically on creation of a work that satisfies the prerequisites for copyright protection and falls within a category of protected subject matter. However, in some jurisdictions (for example, the US) copyright must be registered before infringement proceedings can be filed in court.

Copyright only lasts for a finite period of time. The duration of protection is generally 50-70 years, depending on the type of copyright work. Once this period expires, the work can be freely copied and exploited.

What Does Copyright Protect?

Copyright protects the expression of ideas, not the ideas themselves. For example, the idea/concept of role-playing games, or third person shooter games, is not protected by copyright. Rather, it is a particular expression of these ideas (for example, the software code for an individual game) that is protected.

Only certain kinds of subject matter qualify for copyright protection. The categories of work include literary, musical, artistic and dramatic works, sound recordings and films. Literary works include computer programs and databases. To qualify for copyright protection, a computer game must therefore fall into one of these categories. However, games today can be complex multimedia works and as such can fall into more than one category - typically, a computer program or a film. Individual game components (for example, the code, artwork, sound track, script) may also be protected by copyright as separate works.

What Rights Does Copyright Confer?

The rights granted by copyright are generally economic rights in that they give the copyright owner exclusive rights to control the exploitation of the copyright work. The precise nature of these rights may differ from country to country. However, they generally include the right to copy, rent, perform or broadcast the work, the right to issue copies of the work to the public and the right to adapt the work or do any of the previously mentioned acts in relation to an adaptation of the work. If a person does any of these things without the copyright owner's consent, they will be infringing copyright in the work (unless they can rely on a statutory defence).

Some jurisdictions (for example, Australia and the European Union) also grant copyright owners, or authorised licensees, the right to take action against persons who manufacture, distribute or advertise devices that circumvent copy-protection measures used in connection with the copyright work. The US Digital Millennium Copyright Act similarly affords statutory protection against devices that circumvent copyright protection. This right is particularly useful to those in the console game market, where copy protection measures are often used in games and/or consoles. Sony has recently used this right to bring legal proceedings against distributors of "mod-chips" for the Sony PlayStation and PS2 consoles.

What Are The International Differences In Copyright Law?

The law of copyrights has presented the most famous difference of intellectual property rights between the United States and some EU member states.

Civil law (EU) countries developed a system oriented towards rights of the author, creating bundle of rights known commonly as "moral rights." Moral rights consist of :

1. The right to decide whether, where, how and by whom to publish a work,
2. The right to attribution;
3. The right to integrity of the work;
4. The right to retract the work.

United States copyright law defines no specific body of "moral rights" per se. Rather, the US Copyright Act grants authors exclusive rights consisting of:

1. The right to make copies;
2. The right to make derivative works;
3. The right of distribution;
4. The right of public performance;
5. The right of public display.

Under the US Copyright Act the right to make copies and distribute can largely achieve the same goals as the right to publish under a civil law system, and the right to integrity can be largely protected under the right to adapt or make derivative works. Of the remaining two moral rights, attribution is most firmly established, but remains alienable in the US unlike EU member state Germany. The right of retraction in the US would be a difficult task but could probably be achieved pre-publication through a creative use of certain case law.

Neither the US nor the EU requires registration of copyright. Problematically, as there is no independent record, copyright is not registrable at all in most European countries, whereby - unlike in the United States - it is only ever assessed and affirmed as a right as a result of court proceedings. Only France offers an unambiguous, registrable droit d'auteur ("author's right", literally), which relies upon the author registering their work to the corresponding ‘Société des droits d'auteur' ("Author's Rights Society", literally) much like they would in the US.

Another broad difference in copyright laws of the EU and United States involves what is commonly referred to as "fair use" rights in the United States. Fair use allows for the discretion of deciding what activity may constitute an infringement to the courts. For example, parodies are blatantly derivative works, but in most cases US courts have ruled that parodies constitute fair use on the grounds that they are a form of social commentary. In the EU copyright directives there is no such fair use parallel, and all exceptions are proscribed with no room for member states to add to the exceptions at their discretion. In contrast, copyright owners in the US can expect a dynamic case law that may periodically add activities to the "fair use" penumbra of excepted activities. Both cases are described in more detail in the following sections.

Copyright Protection in the US

Copyright protection in the US is governed by the Copyright Act, a national statute first passed by Congress in 1790. The act was amended in 1980 to extend coverage to computer programs, defined as:

"a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result"

Comprehensive, relevant, and controversial reforms and expansions of US copyright law were introduced in the Digital Millennium Copyright Act of 1998 (DMCA).

The DMCA acknowledges as international treaties agreements including the Berne Convention, the Universal Copyright Convention, the Geneva Phonograms Convention, the WTO Agreement, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty in order to help establish a consistent global copyright framework. It also introduces new statutes specifically intended to protect digital media, including:

• Prohibition of defeating copy protection mechanisms on copyrighted works, other than for fair use.

• Prohibition of manufacture and distribution of technology intended to defeat copy protection.

• Prohibition of falsification or modification of copyright management information.

• Elimination or reduction of liability of an Internet service provider or telecommunications system operator under specific conditions when copyrighted material flows through or is stored in its network, while establishing the provider's right to remove infringing content from such a system.

• Establishment of the right of a software licensee to make archival copies.

• Expansion of copyright laws related to musical performances, films and video, and artistic designs.

The US allows registration of copyrights, and although registration is not required, registered copyrights receive favorable treatment under the law. Registration is very inexpensive ($30) and very easy. The benefits of registration include:

• Eligibility for Statutory Damages of up to $150,000, in addition to the Actual Damages available in any copyright suit.

• Eligibility to seek an award of Attorney's Fees from the infringing party.

One anachronism is that registration of software code requires the first and last twenty pages of the program to be submitted, which can be complicated to ascertain for today's complex systems.

US copyright law has its vagaries. The doctrine of fair use, mentioned previously, often leaves it to the courts (and multiple layers of appeal) to decide the issue of infringement. For example, it is not clear, under US law, whether reverse engineering of software constitutes fair use or infringement. Additionally, US States as legal entities are exempt from certain laws that apply to US citizens; under some conditions it may be legal for a state or local government to copy a protected work, even though such copying by a citizen would infringe on the rights of the copyright owner.

Copyright Protection in the UK & Europe

Copyright is protected throughout Europe via a complex web of international conventions, treaties, agreements and European Community (EC) Directives. From a geographical perspective, this discussion is limited to the protection of copyright in countries that are Member States of the European Union (EU). The EU currently comprises 15 Member States (including the United Kingdom, Germany, France, Italy, Greece, Spain, Finland and Sweden). Although Switzerland is not part of the EU (maintaining its neutrality), it has enacted national copyright law compatible with various EC copyright Directives. The EU is also preparing for the accession of 10 eastern and southern European countries (including Hungary, Poland and the Czech Republic) in May 2004.

A concerted move to harmonise the copyright laws of each Member State started in the 1970's, with the ultimate objective of removing obstacles to the establishment of a common market in Europe. Like trademarks, designs and patents, copyright is a creature of a country's national laws, which therefore places limits on the territorial extent of these rights. At a European level, these territorial limits were removed for trademarks and designs with the creation of Community trademarks and Community designs. However, there has been no proposal for a Community copyright. The harmonisation of copyright in Europe is instead achieved by a succession of international conventions, treaties and agreements, such as the Berne Convention and the Universal Copyright Convention, and EC Directives on copyright which attempt to establish a uniform framework for copyright protection.

As signatories to conventions and as members of the EU, Member States are required to enact national legislation that implements these conventions and EC Directives. Over the years, this has led to differences at a national level in interpretation of requirements. This, together with the discretion sometimes given to Member States in choosing what to implement, means that national differences in copyright law still exist throughout the EU, despite the attempts at harmonisation.

What does 'harmonisation' mean at a practical level?

Firstly, there are no registration formalities to achieve copyright protection in the EU. Copyright protection arises automatically on the creation of a qualifying work. However, the concept of a "qualifying work" may vary between Member States.

Another important concept of European copyright harmonisation is the principle of exhaustion of rights. This principle erodes the territorial monopoly protection of copyright and is aimed at ensuring free trade throughout Europe. In simple terms, the 'exhaustion' principle means that once a product has first been sold in Europe by the relevant copyright owner or with their permission, the product can be freely traded within the EU. A computer game can therefore be first sold in Germany and subsequently imported into the UK and neither the copyright owner in Germany nor the UK can rely on copyright to prevent this trade. However, the UK copyright owner can rely on copyright to prevent the sale in the UK of copies of a game produced outside the EU, where those copies were not imported into the UK with that copyright owner's consent.

Despite the attempts at harmonisation, differences also remain at a national level both in the scope of copyright protection and the remedies available for copyright infringement. For example, the Continental approach is based on the protection of individual authors, whereas the Anglo-American approach (adopted by the UK and Ireland) focuses on protecting both individuals and corporate bodies. There are also variations in the remedies available for copyright infringement. In short, the remedies available to a copyright owner whose game has been pirated will depend on the law of the Member State where the piracy occurred.

In conclusion, although it is generally safe to assume that computer games will be protected by copyright throughout Europe, the "devil is in the detail". It is sensible to get advice on what should be done to secure your copyright rights (for example, getting copyright assignments from freelance programmers) and how to manage your European distribution strategy to ensure that you can take full advantage of copyright protection throughout Europe.