The legal classification of video games as interactive entertaining software varies from nation to nation. As a general rule world-wide, video games enjoy the protection of the copyright acts of the given jurisdiction, which can be applied to a video game as a software (literary work) or as an audio-visual creation (e.g. cinematographic works). Some countries are using an even more complex approach towards classification of video games applied on a case-by-case basis depending on the prevailing characteristics and elements.
The initial purpose of video games is to entertain through a game-flow set in motion by the interactions of the user (besides any secondary function: education, advertisement, problem solving – e.g. Foldit). The visualisation may differ from minimalistic design (e.g. Uplink) to photorealistic presentation (e.g. Battlefield 4).
Most jurisdictions still regard video games as (functional) software, but when analysing the legal approach of countries with vast experience in the video game market (like Japan, Republic of Korea, USA), we come to the conclusion that the audio-visual classification is much closer to the current nature of video games than classifying them as mere software with a graphical display. Especially, when we consider the popularity of CGI technology in the cinematographic industry. In some cases, the sole difference between a video game and a CGI movie is the interaction of the player enabled by the code running behind the scenes (e.g. Final Fantasy, WoW). There is a very strong emphasis on the audio-visual expression of the game – i.e. the created virtual world and its distinct elements and characters. The consumers are identifying the video game itself through these elements (besides the name or the logo), not through the code. The source code is a substantial, but not the only important composing element of a video game, and as a software it can seek protection under copyright or even patent law (if qualified), independently from the video game itself. Nowadays many video games share the same source code/game engine. Thus, in order to be able to grasp any copyright breach regarding the audio-visual appearance of the video game we can rely only on what a player sees and experiences during the game.
The producers bring together different kinds of contributors in order to create a video game that will fuse all of those individual contributions. Despite this, most jurisdictions prefer the distributive approach regarding the legal protection of separate elements of video game defined by their own nature irrespectively from the video game as a whole creation. There is an urge to introduce a presumption that the producer of the game is the exclusive right holder of all rights related to any kind of exploitation of the video games, thus the potential for dispute is minimised when a new form of exploitation is introduced.
In my opinion, the dual nature of video games calls for a sui generis regulation and protection (irrespectively of any patentable elements or available trade mark protection). The video game industry and the secondary market-related business would benefit from a transparent and coherent legal regulation that unifies the present practice which is mostly self-regulated by contractual terms. Although there should be enough room left for self-regulation, since this is an extremely fast developing market.
The Legal Status of Video Games: Comparative Analysis in National Approaches prepared by Mr. Andy Ramos, Ms. Laura López , Mr. Anxo Rodríguez, Mr. Tim Meng and Mr. Stan Abrams (29th Juy 2013, WIPO);
Video Games: Computer Programs or Creative Works? –WIPO Magazine (August 2014)
JICLT Vol. 9, No.1 (2014) – Intellectual Property Protection for Video Games A View from the European Union – F. Willem Grosheide, Herwin Roerdink and Karianne Thomas
Video Games and IP: A Global Perspective – WIPO Magazine (April 2014)