Conference report - More Than Just a Game (Maastricht edition)

Maastricht meets Games … and more! Last week, Maastricht University hosted the on-tour More Than Just a Game (MTJG) conference. 

Gathered together at the Aula Hall, researchers and legal professionals who are passionate about the creative industries discussed a number of hot issues, including video game vs. copyright works, games in health care and the role of competition law in the videogame industry. 

Kat friend Xiao Wang (PhD candidate at Maastricht University, researching ‘copyright and the clone of videogame’) attended the conference and has kindly provided a summary of the presentations. 

Here’s what Xiao writes: 

Panel 1: Videogames as copyright works and interactive storytelling 

Dr. Gaetano Dimita (Senior lecturer at Queen Mary University of London, the organiser of MTJG) opened the conference stressing that academic research on videogame interactive entertainment is important, not just for the economy, but also from a cultural and social standpoint. 

Rene Otto (Lawyer Van Iersel Luchtman Advocaten) addressed the following: since there is no definition of 'videogame' in Dutch copyright law, how should videogames be qualified under the law -- as computer programs or creative works? As the background to that question, Otto introduced the private copying and collection system in the Netherlands and emphasised that the private copying remuneration was necessary for the videogame industry, because it could not only provide the additional source of funding for the industry, but also improve the infrastructure of the industry. However, videogames are excluded from the private copying regime by the Dutch Private Copy Collection Society (“Stichting de Thuiskopie”) because it thought videogames should be considered as the computer program which faciliates the interactivity between videogame and players. Otto opposed that opinion and claimed that a videogame was more than just a computer program. He found support in the ECJ case Nintendo v. PC Box and explained that graphics, sound and narrative all consisted of the original parts of a video game. As a conclusion, Otto qualified the videogame as not only a computer program but also a creative work, deserving both the private copying remuneration in the Dutch Private Copy Collection Society and a legal definition in copyright law. 

The next speaker, Philip Usadel (Legal Counsel Ravensburger AG), shared his work experience and the challenges encountered in his role as counsel for board game company Ravensburger. According to Usadel, copyright law is the most important legal area in his work. For board games, game ideas and principles are not protected; and only the concrete manifestation of them is protected. The licensing contracts are also very important in his work because he needs to pay attention to the protectability of objects, grant of rights, and chain of rights regarding warranties. Besides that, his work relates not only to the enforcement of rights from an international perspective but also the fight against knock-offs mainly produced in China. Under trade mark law, Usadel’s work concerns the registration of trade mark, the object and scope of protection, the factors considered in protecting the company’s trade mark (including the similarity, territory, strategy, and costs). Nowadays, Ravensburger has introduced a mixture of analogue and digital elements to the board games and tried to create its own IP in the board game market. 

Panel 2: Serious games in health care 

Jurriaan van Rijswijk (Games for Health Foundation) pointed out that nowadays videogames have become the medicine for patients. According to Rijswijk, the logic behind that opinion is the following: since it is possible to influence people’s behaviour with play, and games are instruments for play, it is not about games any longer: it is about the play as a tool of intervention. Videogames have now been used to save lives, to be part of the reimbursement scheme of health insurance companies, and to seek FDA approval in the near future. To be more specific, video games have been proved important tools in assisting the research on HIV, Alzheimer, etc. What’s more, since recently a video game named Evo, which was designed as a therapy for ADHD (attention/deficit-hyperactivity disorder), has passed through Phase 3 Clinical Trials, it is very possible that the video game would reach the threshold of being classified as medication. For the future, Rijswijk was very positive of video games getting part of primary processes of health care. 

Rik Geurts (Lawyer Van Iersel Luchtman Advocaten) tried to answer the question when a videogame should be considered as a “medical device” in the context of Regulation (EU) 2017/745 of the European Parliament and of the Council of 5 April 2017 on medical devices (MDR). Since Art. 2(1) of MDR requires the intended purpose for classification as a medical device, Geurts thought that it is not always the case that the manufacturer has thought through what purpose of the videogame is; and many game developers simply started from a brilliant idea and started working on the half-product, and then they started thinking through it for medical purpose as defined in the MDR model. Based on that, Geurts claimed that MDR did not offer a clear definition when something is a medical device or not, and it was necessary for specific legislation or a specific definition stating when a video game (software) is considered to be a medical device. 

Fireside chat on the role of competition law in the video game industry and platform dominance 

Andrea Rizzi (Partner Insight Studio Legale) shared his experience as a practitioner from the perspective of competition law and briefly introduced four cases. The first case concerned the merging of videogame companies Activision and Vivendi. The second case related to Nintendo and seven of its European distributors colluding to prevent parallel trade. The third case showed that Valve’s use of geo-blocking technology designed to essentially locate and prevent consumers based in higher-price jurisdictions from accessing the lower-price jurisdictions offerings. The fourth case concerned the merging of videogame companies Blizzard Activision and King, and the focus was on market definition in relation to videogames. 

Thomas Graf (Lawyer Cleary Gottlieb Steen & Hamilton LLP) paid attention to the importance of platform which was defined as anything that brought together different operations and entities. From the perspective of antitrust law, he thought it was interesting to ask whether the platform brought together buyers in some fashion. He considered Fortnite as an example. Although Fortnite provided skins and in-game purchases, it did not allow in the third parties which also made skins; and that business model was different from that of Apple Store which let in various facilities. In that sense, Graf thought Fortnite was not a platform. Besides that, Graf also mentioned the antitrust issue between Apple Music and Spotify and thought that issue has not been conclusively decided until now. 

More than Just a Game has become a successful European series. Interested in attending one in the upcoming future? Information can be found via here. 

Photos courtesies: 

The 1st photo: Ms. Tongle Si

The rest: Tian