As we have discovered, most early computer games are still protected by copyright and therefore they cannot be archived or made available online (even for not-for-profit purposes like the PlayitAgain project) without the consent of their copyright owners.
However copyright protection will not necessarily protect computer games from game cloners, who base their activities on the fundamental principle that copyright law has never protected an idea; it only protects the expression of an idea. If you are wondering what that means, then you are in good company!
The rationale for the principle is that ideas should be freely available to everyone. However, particularly since the introduction of copyright protection for movies, audio-visual works, computers and computer games, the courts have struggled with how to separate the idea which underlies a particular work (which is not protected by copyright), from its expression (which is protected by copyright). Court decisions are inconsistent- for example a series of frames creating the moving images in a film has been found to be protected by copyright, whereas a series of still images in a computer game which created an “illusion of movement” was ruled to be an idea and not protectable. Admittedly in the latter case the series of images was of a commonplace activity (a snooker game), but this has not always been the situation.
The games cloners tend to take advantage of this inconsistency and uncertainty and frequently copy the gameplay and storyline of another game producer’s successful creation. In effect the research, time, and funding that was expended in producing a game is exploited by the cloner who free-rides on the original game company’s work.
I would be interested to hear your thoughts on this. For example, would it be practicable to patent the underlying software in a game to protect it from the cloners?
The “Flappy Bird” movement seems to be the latest and greatest example of cloning at work – within hours of the game being pulled there were a number of successful clones.
In New Zealand, I can’t think of any means of protecting the underlying ‘idea’ – indeed, most intellectual property systems specifically prevent monopolising an idea, opting instead to protect physical embodiments or realisations of ideas. Our patents system provides protection for apparatus, methods and systems. Software (at least in NZ) won’t be afforded protection without some element of real-world or mechanical interaction (e.g. the software that drives a washing machine or assists aircraft navigation). This is especially clear under the new Patents Act.
Coming back to Flappy Bird, it seems that the best means of protection might be through a catchy brand (trade mark) and visual environment (copyrighted characters and graphics). There are a number of clones out there that could well amount to trade mark infringement and the tort of passing off (assuming that the clones were taking advantage of the original designer’s brand and reputation).
For some time I would regularly browse over any articles on the Tom’s Hardware web site that mentioned anything about patents and Company A versus Company B. Based on the countless “patent system is stuffed” comments in such articles, I’m not sure whether it is a good long-term solution (granted that these are USA based comments, but still it makes you think). I suspect that the basis of such comments is that some patents are very generalised and probably intending to be non-specific so that the holder has a greater chance of success in any legal action.
A good point Thomas. Our new Patents Act definitely does exclude “computer programs, as such” from patentability. However, we don’t also have the specific exclusion of “methods of playing a game” (as I believe European patent law does). Do you have any views on why that might be?
Should we infer that in New Zealand law a game which is novel and has an inventive step could be no less patentable than an new kind of household appliance? After all it is equally valuable to its creators. Just a thought…!
Also, do you think a trade mark for the name of a game or copyright protection for the graphics would be sufficient to protect the huge investment that goes into many games?