More Than Just a Game V - IP and the gaming industry

Last week marked More Than Just a Game V - the London edition.

MTJG (as it is known by those in the know) is an international series of academic-led conferences on Games and Interactive Entertainment Law attracting an international network of researchers and legal professionals who are passionate about the most successful and fastest-growing of the Creative Industries.

Anne Rose (Mishcon de Reya) attended the conference and has provided this summary of some of the more IP relevant talks. Thanks Anne!

#QM_MTJG 2019 in review

More than Just a Game brings together stakeholders from the industry, legal profession and academia to discuss the emerging challenges and developments facing games and interactive entertainment. This year, the conference covered a number of issues including loot boxes & the risks of randomised monetisation; the impact of GDPR on artificial intelligence, and the importance of registered design rights in maintaining control of key game assets.

Loot boxes and the risks of randomised monetisation

Dr Gaetano Dimita and Professor Jon Festinger discussed "loot boxes" and its growth as a sub-category of micro-transactions in gaming.  In particular, they examined how loot boxes are dealt with in a number of jurisdictions and considered the political, regulatory and legal environment. While the legal risk in some jurisdictions, such as the USA, is lower, applicable gambling laws in other jurisdictions may already cover loot boxes (for example, Poland).

In many jurisdictions, loot boxes are not only subject to an increased legal risk but also to a significant enforcement risk. Publishers and developers should therefore consider seeking advice from local counsel at the outset.

The impact of GDPR on Artificial Intelligence

A few speakers considered the impact of GDPR on the gaming and interactive industry. Willy Duhen of Activision Blizzard looked at the impact of inferred players' profiles created by big data, analytics and artificial intelligence.

Under Article 22 GDPR, in the absence of specific circumstances (such as where the individual has given their explicit consent), data subjects have a right not to be subject to decisions based solely on automated processing (including profiling) that produce legal effects concerning the individual. 

Where automated decision making and/or profiling does occur, the fact that a video gamer's personal data is being used for such purposes must be disclosed to them together with information about the ‘logic’ involved and the intended results of processing (Article 13(2)(f) and 15(1)(g)). One issue raised was that it could result in publishers having to disclose their anti-cheat logic in a video game. Given that many video games now use machine learning in some form or other, it will be important to keep algorithms up to date and under review.

The importance of registered designs in maintaining control of key game assets

Rosie Burbidge, a Partner at Gunnercooke, reminded us of the importance of design rights and how useful they are for publishers and developers as a tool for protecting the appearance of different parts of a game from game characters through to the backgrounds in different gaming environments and potentially even some more functional aspects of gameplay.

In practice, the registration of designs in the industry has been fairly limited (with a few notable exceptions). The industry typically relies on a combination of copyright, trade marks and passing off but each of these rights has drawbacks for the industry not least for copyright which offers limited protection for clone games following Nova v Mazooma [2007] EWCA Civ 219 (on IPKat here).

Rosie reminds us that in the EU, a unregistered design right is automatic and lasts for 3 years from the date the design (e.g. a character in a video game) is first made available to the public. You can protect the appearance of the whole or a part of the character including its shape and texture as long as the design is 'new' and has 'individual character'. To extend protection, you can register the design within one year from the date it was first made available and obtain protection for up to a maximum 25 years. The fee for registering a design is relatively modest, there is no substantive examination and invalidity via the EUIPO or national  courts is a very slow process. It will be interesting to see whether more companies will explore this often forgotten intellectual property right.

Overall, the More than Just a Game London conference provided a useful snapshot into some of the hottest topics in gaming law. The conference has now become a successful European series. Watch out for future editions in the Netherlands, Germany and Italy. It's not to be missed by anyone with an interest in games or gaming law.