Knowledge & News

Gaming innovators must ensure their intellectual property is protected

6 February 2019

This article first appeared in in The Scotsman.

It’s fair to say that Scotland’s gaming industry is doing pretty well for itself.

The term ‘punching above its weight’ is over-used, but in the case of gaming, Scotland is truly performing in the heavyweight division.

Figures from games trade body TIGA showed the industry in Scotland grew by 27 per cent in 2016-17, with direct and indirect revenues of more than £170 million.

TIGA found Scotland is the third largest cluster in the UK for video games, behind only London and south-east England, with over 1500 permanent full-time staff working on games development in the sector across a total of 91 companies, and a further 2,800 employees in jobs that indirectly support the sector.

In Scotland, we have a particularly fertile tech environment, and the past 20 years have seen a talent pipeline being carefully nurtured, providing a clear link from universities and colleges to start-ups, which is now paying off spectacularly.

If the staggering growth in Scotland isn’t indication enough, then make no mistake, the UK’s gaming sector as a whole is now absolutely massive – it’s truly mass market and it’s comfortably overtaking the much more established incumbents of the entertainment world. In fact, recent reports indicate the gaming sector now accounts for more than half of the UK’s entire entertainment market, making it more lucrative than video and music combined.

Games producers have been adept at maximising the advent of games apps on smart devices, while successfully facilitating the transition from physical distribution to digital distribution through the likes of in-game monetisation.

However, as the popularity of these titles and games continues to grow, so does the need to protect the intellectual property inherent in their ideas, particularly when a lot are replicated across the industry. Obtaining patent protection for new game-related features in Europe can be difficult but is potentially possible if such new game features provide a technical contribution. The European Patent Office’s Boards of Appeal have issued favourable decisions, for example for a football game interface for KonamiRTM.

Also, rules on patenting are different in the US, a key market for many games developers. Patent protection can be an important commercial tool even for software companies.

Last year, PUBG Corporation, the South Korean studio behind the hit game PlayerUnknown’s BattleGrounds, brought a copyright infringement claim in South Korea against US-based developer, Epic Games – the studio behind the rival game, Fortnite – after the latter had introduced a ‘battle royale’ mode.

PUBG were vocal in their concerns that Fortnite was replicating ‘Battlegrounds’ and claimed the titles were very similar too. The idea/expression dichotomy in copyright law is of particular relevance to computer programs, but in many ways this area of IP is still in its infancy.

In the UK, some key cases examining look and feel copying of software have found against the copyright holder. These cases might well lead to some interesting additional guidance for developers who might be considering pursuing claims against imitators.

However, every case is judged on its own facts and merits, and therefore the industry should be wary of drawing conclusions from just a handful of rulings. Scotland is hoping to become a major player in the global space sector.

Generally, it’s preferable for both sides of such a dispute to seek to reach a commercial settlement rather than fight the issue in multiple jurisdictions, potentially resulting in conflicting outcomes. This is especially true where both sides seek a quick and certain resolution.

Gaming IP is a complex area, so it’s prudent to move quickly to secure any fresh ideas with the help of the right support and advice, ensuring that Scotland’s intellectual capital is not only protected but allowed to thrive. The incredible global success of our developers shows just how important that is.

Laws are always playing catch-up when it comes to digital industries, but essentially, there are a number of mechanisms available to protect intellectual property associated with digital innovation.

Specialist advice must go hand-in-hand with a determination on the part of Scottish gaming innovators to make sure that the results of their hard work and investment are protected.

Authors

Tim Hargreaves

Tim Hargreaves Partner Edinburgh (UK) Glasgow (UK) Chartered (UK) and European Patent Attorney

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