More Than Just a Game V - IP and the gaming industry
Updated: Oct 25, 2020
More Than Just a Game (MTJG) is an international series of academic-led conferences on Games and Interactive Entertainment Law attracting an international network of researchers and legal professionals who are passionate about the most successful and fastest-growing of the Creative Industries.
The 2019 conference covered a number of issues including: (i) loot boxes & the risks of randomised monetisation; (ii) the impact of GDPR on artificial intelligence, and (iii) the importance of registered design rights in maintaining control of key game assets.
Loot boxes and the risks of randomised monetisation
Dr Gaetano Dimita and Professor Jon Festinger examined how loot boxes are dealt with in various jurisdictions. Loot boxes are virtual items which offer potential rewards. The content of a loot box varies at random. Consequently, many countries see them as akin to gambling. Loot boxes are coming under increased scrutiny. Some countries (e.g. Poland) have explicitly stated that loot boxes are covered by gambling legislation.
Loot boxes will likely remain popular with players and developers alike but they should be approached with caution and used in conjunction with local legal advice.
The impact of GDPR on Artificial Intelligence
GDPR remained a hot topic (around a year after it was first introduced). Willy Duhen of Activision Blizzard looked at the impact of inferred players' profiles created by big data, analytics and artificial intelligence.
Broadly speaking automated processing of personal data (including profiling of players and automated decision making) is only possible with players' explicit informed consent. This is rarely obtained.
Informed consent requires not just the fact that the profiling/automated decision making is happening but also details of the "logic" involved (i.e. the key inputs into the algorithm and the way these inputs are analysed) and the intended results of processing.
Using registered designs to control key game assets
No summary of More than Just a Game would be complete without a humblebrag about my talk on registered designs.
Designs are the most overlooked IP right. This is a mistake. Designs are an important weapon in the gaming company's arsenal - particularly for gaming companies who have long had to suffer the issues of clone games. The best designs strategy involves protecting different levels of a game from (i) game characters through to (ii) key static backgrounds and (ii) game logos and more.
The gaming industry has been fairly low on the designs update because of the time and investment required in obtaining comprehensive protection. Those who have invested in them have been rewarded by faster app takedowns and a slicker and more efficient overall enforcement programme.
Without registered designs, the gaming industry has to rely on a combination of copyright, trade marks and passing off. However, the primary right, copyright, is inherently problematic. The famous Court of Appeal case, Nova v Mazooma  EWCA Civ 219 (on IPKat here), established how challenging it is to protect a game using copyright because, unlike a film, each time a player plays the game they will have a different experience. That is a large part of the fun of the game but it is problematic from a copyright point of view.
An alternative to registered rights is unregistered designs. In the EU, designs protect the shape or appearance of the whole or part of a product (including two dimensional products such as game graphics or backgrounds). However, they only last for three years from the date the design is first made available to the public. If you want protection to last longer, you need to register the design within one year from the date it was first made available and obtain protection for up to a maximum 25 years.
The fee for registering a design is relatively modest, there is no substantive examination and invalidity via the EUIPO or national courts is a very slow process.