Playing with protection — copyright in video recordings and the circumvention of technological protection measures

Abstract

As is the case for other creative works, developers of videogames should be able to rely upon copyright law for protection of their intellectual property. However, although videogames are frequently cloned by rival videogame developers, copyright law appears ill-equipped to cope with the practice. Cloners avoid copying the game components that are clearly protected by copyright: the frames, sounds, or computer code; instead, they copy the way in which the videogame plays (“the gameplay”) which courts have found to be outside the scope of copyright protection. Some scholars have argued that the cloners would be more vulnerable to effective legal challenge if videogames were protected as a new category of works in copyright law. In this article, however, I draw upon videogame theory from the digital humanities, and link this to the concept of copyright harmonisation, which has been propounded as likely to guide future decisions of the Court of Justice of the European Union, to explain why the suggestion that videogames should comprise a new category of copyright works is not practicable. Instead, I argue that a videogame as an entity should be protected by copyright, as should any other creative work, provided it meets the criteria of “an original intellectual creation”.