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Dr Michaela MacDonald
Lecturer, The School of Electronic Engineering and Computer
Science
Queen Mary University of London
Interactive
Entertainment
Law 1
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About me
• Graduated from MUNI in 2009
• Lecturer at Queen Mary University, the School of Electronic
Engineering and Computer Science (EECS)
• Teach and research on the impact of laws, norms and environmental
constraints on users’ behaviour and interactions in Cyberspace
• Collaborations with WIPO, UKIPO
• Co-editor of the Interactive Entertainment Law Review, Edward Elgar
Publishing
• Consultant at Kriz & Partners, ČR
• Contact: michaela.macdonald@qmul.ac.uk
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Module Objectives
• What to expect from this module:
• An introduction to Interactive Entertainment Law as a separate legal
discipline;
• Understanding the unique nature of video games as creative media;
• Gaining insights into the video game industry;
• Grasping the role of IP for the entire video game lifecycle and the industry as
a whole; and
• Identifying different stakeholders and their interests (developers, publishers,
platform owners, users, creators, etc.)
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Module Overview
• Lecture 1 – Video Games and IP
• Lecture 2 – Video Games and Copyright
• Lecture 3 – Video Game Patents
• Lecture 4 – Trade Marks, Designs and Other Rights
• Lecture 5 – The Metaverse
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The Industry – Statistics
• Global revenue to reach $406.20bn by 2023
• Over 3 billion people play video games, with projections of 4.4bn
users by 2028
• 53% of the EU population (aged 6-64) plays video games (IFSE 2022)
• China is generating the highest revenue in the video game market,
while the US remains the dominant player
(high consumer spending, major video game companies)
www.statista.com
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The Industry – Characteristics
• Young, global, fast-paced, born digital, highly innovative, creative, and
very successful industry
• Complex digital products, underpinned by IPRs
• Complex contractual matrix facilitating the ecosystem
• Complex regulatory framework
• Transnational / international reach with consequences for the entire
legal and regulatory framework
• Profound impact on culture and society
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The Industry – Structure
• Game platforms
• PC
• Console
• Mobile
• Game distribution
• Digital
• Retail
• Cloud
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The Industry – The Players
• First party – makers of software
and / or hardware
• Publishers
• the vast majority of games are
made by third-party publishers
and developers
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The Industry – The Trends
• Digital accessibility will increase
• More powerful devices, enabling content-intensive games
• E-sports, cross-platform play, and cloud gaming will further expand
• Live services and video-game streaming services will grow
• More innovative gameplay will lead to more engaging games
• VR / AR / XR… The Metaverse
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Interactive Entertainment Law
• Interactive Entertainment Law:
• Identifies relevant legal, regulatory and commercial considerations that
industry players need to be aware of,
• Links and reinforces intellectual property issues, in particular copyright, to the
specific needs of this creative industry, to promote economic growth and
support game developers in protecting their creative works,
• Explores the player vs creator conundrum,
• Formulates industry-informed and inter-disciplinary research and policies
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Interactive Entertainment Law
• IP law:
• Copyright – protects the engine and the content
• Patents – protect hardware and software-related, technical effect
• Trademarks – protect branding, game mechanics (?)
• Design – protects how a product looks
• Confidentiality and trade secrets
• Unfair competition and anti-trust
• Personality rights
• Contractual matrix – while IPRs are the default rules in relation to rights allocation with regards to
the various protected assets, contract law provides an infrastructure that facilitates the access to
and use of these assets and, furthermore, enables to modify or adapt these rules
• Regulation plays an increasingly important role in shaping the industry’s future and our aim is
to provide a platform for a multi-stakeholder dialogue that will result in well-informed, positive
policies (rather than reactive ones)
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MTJG – Conference Series
https://www.mtjg.co.uk/
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IELR – Peer-review Journal
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Video Game as an Interactive Medium
• A complex digital product, an interactive medium
• Video games are unlike traditional games or sport practices
• The consumption of video games is tied to specific technological platforms
that are also consumer commodities, such as consoles, computers, or
handheld devices
• The complexity (and industrial scale) of video game animation, music, and
acting, makes a modern video game share more in common with a motion
picture than with a board game
• Players are interacting with the game and with each other
Developer Publisher Distributors Retailers Consumers
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Video Games and IP
• Video games as digital products heavily depend on IPRs – it is the
bloodline of the industry
• Video game as “an electronic or computerized game played by
manipulating images on a video display or television screen.”
• IPRs are associated both with the tools used to develop games and
the content included in a game
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Intellectual Property Rights
• Copyright – set of exclusive rights granted by statute in relation to original works that
generally lasts for 70 years after the death of the author; it arises automatically through
the act of creation and does not need to be registered
• Database right – a statutory right based on the substantial investment made in creating
and maintaining databases and protects against the extraction and reuse of data for at
least 15 years
• Patents – a monopoly right granted by statute for the commercial exploitation of an
invention for a limited time, usually 20 years; registration is required
• Trade marks – indicate the origin of goods and services, and may be protected from
misuse by third parties, either by rights acquired via registration or through evidence of
use; protection will last for as long as the mark fulfils its role as an indicator of origin
• Registered designs – may be protected through the act of creation or by registration and
there is a plurality of design rights available (aesthetic and functional aspects of the
designs of industrial articles, or protect against the copying and misuse of designs); they
last between 3 to 25 years
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Other Rights
• Confidential information / trade secrets – most legal systems do not
recognise trade secret as exclusive rights as such, but rather a specific
legal remedy designed to protect the secrecy put up by the
rightsholder, which is based on different legal principles, such as
unfair competition, general principles of tort law, contract law or
breach of confidence in common law jurisdictions
• In the EU, the Trade Secret Directive establishes a minimum standard of
protection
• It specifically states that trade secrets are not considered intellectual property
rights, which also precludes the application of the Enforcement Directive
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Other Rights
• Personality / image rights / rights of publicity – a property right that
protects against the misappropriation of a person’s name, likeness, or
other indicia of personal identity – such as nickname, pseudonym,
voice, signature, likeness, or photograph – for commercial benefit
• US
• State law level, statute or case law
• Rogers test, transformative use analysis
• Outside US
• Personality and image rights, different legal regimes
• Related protection: trade marks
• Related claims: copyright claims, privacy and defamation claims
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IP Matrix (plus trade secrets)
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https://www.wipo.int/export/sites/www/socialmedia/en/docs/how-much-ip-is-there-in-playstation.pdf
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In-class Exercise
• Work together in small groups of 3-4 students.
• Imagine that you are the Chief IP Counsel of a major video game
company.
• One of your tasks under IP management is to draw up an IP portfolio
for one of the video games your company develops.
• Consider all the different IPRs and how they may apply to different
aspects of this video game title.
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Key Points
• The interactive entertainment industry has experienced an
unprecedented success and growth
• This has recently attracted a lot of attention and scrutiny
• Interactive Entertainment Law encompasses and defines all the legal
and regulatory issues and challenges – the scope is expanding
• IP is at the core, but IE Law increasingly focuses on other aspects as
well
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Thank you!
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