Rules of the game (part 1): Copyright protection of video games in Canada

The video game industry is highly competitive. As the barrier to entry for developers has been lowered, the number of competing products in the market has dramatically increased. Consequently, it's more important than ever that stakeholders know how to protect and exploit their creations.

While high profile video game lawsuits have been more common in the United States, we are starting to see them occur in other hotbeds of video game development - including cases involving industry giants in South Korea and in Canada. This underscores the fact that as the video game industry continues to expand globally, protecting intellectual property in video games is now also a global concern. Given the growth of the industry in Canada (which added an estimated $3.7 billion to Canada' GDP in 2017 alone, according to the Entertainment Software Association of Canada ^[1]), it is likely only a matter of time before we see the number of high-profile cases in Canada rise. Whether you are a solo developer, an upstart indie game studio or a AAA publisher overseeing teams of hundreds, it is essential to understand how to protect your work under Canada' intellectual property regime.

This article, the first in a series exploring intellectual property and video games, discusses how Canada' copyright law applies to video games.

Are video games protected under Canada's Copyright Act?

In Canada, copyright subsists in every original literary, dramatic, musical and artistic work, in a performer' performance and in sound recordings.^[2] While the Canadian Copyright Act does not identify video games as a specific type of work and the courts have not directly stated what type of "work" video games fall under, the courts have recognized that video games are protected under copyright.

Not only is the video game as a whole protected, but elements of a video game may also be considered works that are entitled to distinct copyright protection - for example, source code, script/dialogue, musical works and sound recordings, voice acting, character design and level design.

Who owns the copyright in a video game?

The Copyright Act provides that the "author" of the work is the first owner of the copyright.^[3] The Copyright Act does not define the term "author." Determining who the author is will depend on the specific facts of each case; however, in general, an author will be a person who exercises skill and judgement in the creation of the work.

Being the author of a video game does not necessarily make that person the author of the copyright-protected components incorporated into the game. Potentially, any development team member who has contributed to a video game could be considered an author of a copyright-protected work that is incorporated into the video game, assuming they have exercised skill and judgement in the creation of the work.

The authorship of a video game was considered by the Superior Court of Québec in 2015. The plaintiff, an artist who contributed visual content used in the video game, was not found to be an author of the video game itself. However, he was found to own copyright in his artistic works, which were incorporated into the video game. The video game developer was ordered to pay $10,000 as compensation to the plaintiff for the use of his work.^[4]

This doesn't mean that developers now need to hunt down every person who has ever contributed to their video game. Under the Copyright Act, if an author of a copyright protected work is in the employment of another person under a contract of service and the work was made in the course of that employment, the employer will be the first owner of copyright in the absence of an agreement to the contrary.^[5] This provision does not apply to work done by independent contractors.

All of this goes to show that video game creators must be careful to include copyright assignment or licensing provisions in their contractor agreements in order to ensure that they in fact control all necessary copyrights. Seeking proper legal advice at an early stage can ensure copyright ownership goes to the proper entity to allow game creators to effectively exploit and protect their work.

What does copyright protect in a video game?

The owner of copyright in a work has the sole right to produce or reproduce a substantial part of the work, to perform the work or any substantial part of the work in public and, if the work is unpublished, to publish the work or any substantial part of the work.^[6] This means that if someone copies your game as a whole (e.g. downloads a copy via a torrent), or takes copyright-protected assets from your game (e.g. source code or art) they may be liable for copyright infringement. Further, any unauthorized performance of the work, for example streaming gameplay online, could be an infringement of the right to communicate the work to the public by telecommunication.

The Copyright Act also prohibits anyone from circumventing technological protection measures (e.g. digital rights management, also known as "DRM") that control the access to a video game or that restrict any of the activities that are the sole right of the copyright owner under the Copyright Act. This provides a powerful tool to combat the unauthorized reproduction of video games. In a recent decision where the Federal Court found that technological protection measures for Nintendo' D2, 3DS and Wii systems and video game had been circumvented, Nintendo of America Inc. was awarded $20,000 in statutory damages for each of the 585 video games that could be accessed as a result of the circumvention.^[7]

The Canadian Copyright Act and the courts' application of copyright law to video games provide strong protection for copyright owners. However, the Canadian copyright regime is often looked at as a balance between the rights of copyright owners and the rights of the users. Stay tuned for an upcoming article in this series where we will consider how the Canadian Copyright Act permits players to use video games and how a video game' copyright owner can respond when they are concerned with what those players are doing.