Online games and shared creativity: who owns it?

Kat horoscope

Happy New Year to all IPKat readers! To start properly what promises to be an exciting year, both IP-wise and not (Jeremy's views on 2013 here; 2013 horoscope here), the IPKat wishes to bring to its readers' attention a recent article which has appeared on Forbes and attempts to identify what the next frontier in IP might be.

Perhaps unsurprisingly, this has something to do with online videogames.

Not long ago, also Nicola wrote a post in which she discussed the various IP issues facing games content. Among the other things, she highlighted how the key character in computer games content is cumulative innovation ("standing on the shoulders of giant nerds"). This means that, with regard to games, much of their content is derivative of other media. As a result, it may be difficult to determine where inspiration/derivation/cumulative innovation ends and copying/cloning begins. In copyright terms, this is an idea/expression dichotomy problem, which is often (not to say invariably) difficult to address (for a recent US decision concerning copyright infringement in 1980s iconic game Tetris, see here).

However, derivative content may not be the only IP-related issue affecting the addictive world of videogames.

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As explained by Forbes, problems may arise also in relation to what are known as massively multiplayer online games (MMOGs). These are online games which are capable of supporting hundreds or thousands players at the same time. The most popular type of MMOG and the genre that pioneered the category is the massively multiplayer online role playing game (MMORPG). This includes games which focus - among the other things - on socialisation, and world-building.

In some instances, world-building is to be intended literally. Popular game Minecraft, which sold 450,000 copies just on Christmas day, is an example. The creative and building aspects of Minecraft allow players to build constructions out of textured cubes in a 3D procedurally generated world. 

The question for games like Minecraft is the following: who owns the resulting IP?

If in the past, the answer was easy (it was usually the companies making the games that generally held it), nowadays - especially when it comes to multiplayer online gaming environments - the response may be more complex than this. In such instances, in fact, the dividing line between game developers and players appears blurred. As a result, it is difficult to determine who did what and who owns what.

So: what is the future holding for this type of online games? According to Forbes,

"In the coming years, many of the most interesting online games will be produced not by large teams of developers at big-name corporations, but instead by smaller, independent groups of developers who allow their customers to be partners in creating the IP that comes to define the in-game experience. And when, as will inevitably occur, player-generated IP acquires substantial real world monetary value, players should be able to access that value. This will require that game sellers adopt terms of use allowing players to retain an appropriate, commercially meaningful ownership interest in the IP they create [but is this a likely scenario, especially in a context in which licensing terms are rarely - not to say: never - negotiated individually?]. It will also raise complicated jurisdictional challenges due to the global nature of gaming. Where, for example, should a copyright or trademark claim involving in-game content created on a server in the U.S. by a player in Japan using software provided by a server owner in France be enforced? And, it will require sorting out copyright rights for intricate chains of derivative works."

Although this Kat is not 100% sure that this is what is going to happen, she agrees with the author of the article when he says that such issues go well beyond videogames and touch upon the future legal regulation of crowd-sourcing creativity. This debate is also to be seen in light of broader (and lengthy) discussion (at least at the EU level) as to whether and how user-generated content should be addressed and possible specific exceptions/limitations should be designed.