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A beginner's guide to IP in games - international

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Jas Purewal

on 27 October 2014

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Transcript of A beginner's guide to IP in games - international


Jas Purewal
Purewal & Partners


Design rights
Confidential information
Here's why:
What is copyright?
What is copyrightable in a game?
5 things you need to know about copyright
(2) Copyright law gives you specific rights over your copyright work.
(3) A game will contain lots of different copyright elements at the same time.
(4) Different countries have different copyright systems.
(5) Different copyright works last for different time periods.
Look and feel?
1) Copyright only gives you rights over the actual work you’ve created; it doesn’t give you a monopoly over the idea underlying the work.
About Me
I'm an digital entertainment and technology lawyer and advisor
I spent a decade in the City and have now founded Purewal & Partners, a legal and business consultancy for digital entertainment and tech companies
I work with businesses like: BAFTA-winning games developers, hot YouTube channels and leading Silicon Valley startups
I write www.gamerlaw.co.uk
Trade marks
Dramatic work?
Copyright infringement
The (significant) limits of games copyright
If a developer takes an existing copyright work and copies “ALL OR A SUBSTANTIAL PART” of it, and
That copying can be established FACTUALLY
Then that developer may in principle be liable for copyright infringement to the owner of the original copyright work.
Expressions, not ideas
Gameplay/look and feel?
Practical enforcement issues (it ain't free)
Business models
What's a trade mark?
Trade marks are signs (like logos or brand names) used so that customers can recognise your goods and services and distinguish them from the goods and services of your competitors.

Trade marks are important to a business because they prevent competitors from confusing customers into thinking that they are buying products and services from a trusted, known source when in fact they’re not. In other words, they can be used to stop your rivals stealing your customers.
4 key points about trade marks
• To be fully effective, they need to be registered. This is complex, so you should take legal advice to register and keep them.
• If you operate internationally, you may need to get foreign trade mark protection too.
• They can last indefinitely, but need to be renewed every 10 years.
• Practically, trade marks are helpful in two situations: (1) you can sell/assign/leverage them; and (2) you can use them to stop trade mark infringement by a rival (aka ripping you off).
Trade mark infringement
If you use an identical or similar trade mark to sell identical or similar goods and services to a trade mark which has already been registered,

then you may be infringing that registered trade mark if your trade mark creates a LIKELIHOOD OF CONFUSION on the part of the public (whether that confusion is mistaken or not).

So trade mark infringement DOESN’T just mean that if your trade mark is similar to another guy’s registered trade mark, then you are automatically infringing his trade mark (or vice versa). There would have to be that ‘likelihood of confusion’.
A patent is a type of intellectual property right which "protects new inventions and covers how things work, what they do, how they do it, what they are made of and how they are made. It gives the owner the right to prevent others from making, using, importing or selling the invention without permission" (IPO definition)
Patents typically protect inventions like new medicines or industrial machinery. They allow you to stop others from exploiting your invention and can themselves be sold/assigned/licensed to a third party – which makes them valuable. However, they are limited in duration – they last up to 20 years and then the invention typically enters the public domain.
You can get software patents in the US.
You can get them in the UK/Europe too (ish), but it's complicated and legally uncertain at the moment.
Sadly that doesn't mean you can ignore them because of...
Summary: design rights (there are different kinds) are legal rights which protects the overall visual appearance of a product or a part of a product
Basically, it protects physical IP
Can it protect games content?
Legal position unclear re software/games
Information which "has the necessary quality of confidence" AND is imparted in confidence
Examples: game ideas, business proposals, business information
Keep it confidential: keep discussion to a minimum and don't release to public
Express confidentiality requirements on recipients (ideally a contract or verbally)
Known as "Non Disclosure Agreements" or NDAs
If breached, typically you have
to sue to get compensation
EULAs are your friend, as are website T&Cs
Use contracts to protect your IP
But remember the focus should be on making
great games, not IP infringement or piracy
If in doubt, talk to a friendly lawyer
"Why fight the biggest revolution in information flow since the printing press when you could easily work with it by adding services that actually add some value beyond the free act of making a digital copy?"
(Markus "Notch" Persson )
(though they don't look it)
How to reach me
Email: jas@purewalandpartners.com
Website: www.purewalandpartners.com
Blog: www.gamerlaw.co.uk
Twitter: @gamerlaw
How about passing off?
Broadly analogous to trade marks, used where you don't have a registered trade mark
You have to show:
(1) you have "goodwill" in the product
(2) someone is "passing off" their product as having a connection to you/yours
(3) this is causing you damage
Spot the difference?

Diageo v Sainsburys
Passing off claims are
relatively hard
Nova Productions v Mazooma Games
The Da Vinci Code case
(Baigent v Random House)
It was alleged that Dan Brown had plagiarised a
previous book "The Holy Blood and the Holy Grail"

The judge found that Brown HAD recyled large parts of
the "central theme" of the original book

BUT, no copyright infringement because there had
not been copying of "all or a substantial part" of the
ACTUAL TEXT of the original book
Two arcade games developers

Nova argued that Mazoom had copied the
user interface or "look and feel" of its game

Held: no copying of "all or a substantial part" of
actual copyright works - look/feel not enough
Games copyright infringement has been around
since before him...

But it's more of a problem than ever...
Copyright law is the main branch of IP law which protects creativity, as opposed to say trade mark (which is essentially about marketing your products) or patent law (which protects industrial innovation).
Copyright law protects the rights of anyone who creates and/or owns a piece of work – such as a book, a film, a database or a computer program.
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Question: is it still Tetris...
...if it's not CALLED Tetris?
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