What kind of intellectual property rights does an owner of a video game have? This is a question most clients who want protection for their video games usually ask me while we are dealing.
To note is that video games present many challenges in IPR because of their cross-cutting nature: they usually contain audio visual elements such as picture, video recordings and sounds; and they also contain software on which the audio-visual elements are managed, permitting the end user to interact with the different features of the game.
The matter is not helped by the current legal regime on protection of video games which is also complex. This is not to say that video games cannot be protected. Article 2 of the Berne Convention says that video games are eligible for protection by copyright. The complexity of their protection comes from their nature of containing both audio visual elements and software.
As such, general questions on the protectability of video games do not have clear cut answers. However, a question on protectability can be answered about a country where the owner of the video game seeks to protect their game.
Protection of video games in Kenya
The Copyright Act, 2013 and the regulations made thereunder (the Copyright Regulations, 2014) are the main laws which govern copyright protection in Kenya. According to section 2 (1) of the Copyright Act, artist work means, irrespective of artistic quality, any of the following or works similar thereto: paintings, drawings, etchings, lithographs, woodcuts, engravings, prints; maps, plans and diagrams; works of sculpture; photographs not comprised in audiovisual works; works of architecture in the form of buildings or models and works of artistic craftsmanship, pictorial woven tissues and articles of applied handicraft and industrial art.
Under the same law, audio visual works are defined as a fixation in any physical medium of images, either synchronized with or without sound, from which a moving picture may by any means be reproduced and includes videotapes and video games but does not include a broadcast.
According to this definition, the protection given to audiovisual works would also be applicable to video games.
To note is section 22 of the Copyright Act which defines works that are eligible for copyright protection. They are: literary works, musical works, artistic works, audiovisual works, sound recordings and broadcasts.
The above sections show that video games qualify as audio visual works eligible for protection under the Copyright Act.
Elements in a video game such as the computer code/program which facilitates a user’s interaction with the game are also eligible for independent protection.
Section 2 Act defines computer program as a set of instructions expressed in words, codes, schemes or in any other form, which is capable, when incorporated in a medium that the computer can read, of causing a computer to perform or achieve a particular task or result.
The author of a video game can therefore protect the game using copyright and seek other specialized protection for the computer code for the game. Other works which are protected under the Copyright Act are movies, songs and videos.
Who is the rights owner?
Copyright is for an author of literary, musical or artistic work. An author is the person who first makes or creates the work. However, the author of an audiovisual work is the person who made the arrangements for the making of the work.
This means that the author of a novel the copyright in the movie, and not the publisher or editor. There are scenarios though where different people come together to produce work eligible for copyright and they jointly share the rights in the work. For example, where friends come together to make a video game and one draws the pictures, another makes a computer program, another composes the sound track, then such friends can agree on how to jointly own the copyright.
Also, employers of a person who generates works eligible for copyright may be treated as the author of such works. According to section 31 (1) of the Copyright Act, where work is commissioned by a person who is not the author’s employer under a contract of service or, not having been so commissioned, is made in the course of the author’s employment under a contract of service,1the copyright shall be deemed to be transferred to the person who commissioned the work or the author’s employer, subject to any agreement between the parties excluding or limiting the transfer. In this case, the author shall retain the moral rights, but the patrimonial rights are deemed transferred to the commissioner.
Therefore, under the Kenyan Copyright Act, the rights regime is quite complex and confusing, because original creators of a literary, musical or artistic work will be the authors of the work, maintaining all copyrights in the work (unless it was commissioned or where an employment contract exists). However, if the work has an audiovisual character, the original contributors will not be the authors but the person making the arrangements for the making of the film will be the author. As a result, regarding video games, it is essential to ascertain the legal nature and classification of this type of work to determine the applicable rights regime.
Transfer of rights in video games
According to section 33(1) of the Copyright Act, rights in a video game can be transferred to a third party by assignment, by license, testamentary disposition or by operation of law as movable property.
An assignment or testamentary disposition of video game rights may be limited as to scope, timing or geographical area.
An assignment or license must be in writing, signed by or on behalf of the assignor, or by or on behalf of the licensor and the written assignment of copyright must be accompanied by an appropriate letter of verification in the event of an assignment of copyright works from outside Kenya.
Where a license in non-exclusive the law makes an allowance for it to be oral, or for it to be inferred from conduct. In such a scenario, it may be revoked at any time. However, where a license is granted by written contract, it shall not be revoked, either by the person who granted the license or his or her successor in title, except as the contract may provide, or by further agreement.
The law also permits an assignment, license or testamentary disposition in video games to be made in respect of a future work, or an existing work in which copyright does not yet subsist and the prospective copyright in any such work shall be transmissible by operation of law as movable property.
Video games and folklore
Folklore is a literary, musical or artistic work presumed to have been created within Kenya by an unidentified author, and which has been passed on from one generation to another and constitutes a basic element of the traditional cultural heritage of Kenya. Such works include: folktales, folk poetry and folk riddles; folk songs and instrumental folk music; folk dances and folk plays; and the production of folk art, in particular drawings, paintings, sculptures, pottery, woodwork, metal ware and jewelry.
Kenyan folklore is part of the country’s national culture and heritage. The Copyright Act establishes a legal framework to be used where works are derived from Kenyan folklore. As such, if a video game includes Kenyan folklore, it must confirm to section 49 of the Copyright Act for it to be eligible for protection
With the emergence of technology and it use, intellectual property rights for artistic works which are run on technology is rather complex. There are no decided cases on the protection of video games so, it is also difficult to fathom an area of conflict and how it would be resolved. However, do not wait to be in conflict to get protection for your work. Call us today and let us advise on how to go about your case.
BY SAMALI BITALA
This article appears in our law newsletter Vol 2 Issue 1 of February 10th 2018. To receive The Deuteronomy in real time, click HERE