Only one group ever came and never went away: Lawyers.
This is because if the lawyers went, so would the games industry. (Richard A. Bartle)
Why digital games, which is one of the entertainment industries with the largest market share in the world, still cannot find a place for itself in a separate category of works in the field of intellectual property law? In which category do we legally examine this digital approach, which is called the culturally and economically dominant art form for the economically advanced societies, and which legal protections do we benefit from? Why are there still debates about whether digital games have aesthetic value? How safe can a game designer feel in this industry?
Considered one of the most popular feature films in the world, E.T was one of the most popular productions of 1982. After E.T's great success in the movie industry, Atari, which agreed with director Steven Spielberg, bought the game rights of the movie for $25 million. The job of making the game was entrusted to successful software developer Howard Scott Warshaw and was given only 5 and a half weeks. Not only the company, Steven Spielberg also trusted Warshaw, even calling him a 'genius'. According to the technological possibilities at that time, this time was close to impossible to complete the game. More cassettes were produced than Atari's total number of consoles, and the game was completed and released in 5 and a half weeks, as promised. There were too many software errors in the game, and those who sold the game started to return it one by one. Atari lost millions of dollars and was on the verge of bankruptcy. Nearly 750,000 cassettes were buried in a field in New Mexico, and it is said that there is still a cassette cemetery in that area.
Unsuccessful licensed games have been made since the beginning of the digital game industry, and E.T is one of the most striking examples of this. This is why digital game law needs to be addressed as an important issue.
Computer games, which were initially tried to take advantage of the attractive effect of introducing computers to the market and increasing the sales of computers, now take their place at the top of the sectors in the entertainment market. Today, almost everyone in the world has a cell phone and half of the world's population has a smart phone. Young people who are introduced to technology at a very early age, who cannot read or even speak yet; middle-aged people who add excitement to their lives by playing games that offer the opportunity to meet third parties and send instant notifications; The only common point that older people, who are late to meet with smartphones, meet, except perhaps for their basic human needs, may be digital games. The user base of digital games has now reached a level that will appeal to almost all age groups.
According to the Global Game Market Report for 2022 by Newzoo, digital game revenue in the world has reached the level of 196.8 billion dollars, and the annual growth rate has been determined as 2.1%. Mobile games account for $103.5 billion of this amount, which means a 53% market share. The annual growth rate of mobile games is also stated as 5.1%.
The Turkish gaming industry is also increasing its recognition by opening up to the global market, and the domestic gaming startup Fomo Games received a seed investment by Libertus
Capital in the first months of 2022, as a good example. The further growth of the sector will depend on the establishment of a strong legal basis. In this article, we will discuss the legal studies within this framework.
The digital game industry is developing very fast, but it does not have its own regulations yet. The increase in demand for a sector naturally increases the conflicts in that sector. Disputes may be encountered in the development of the game idea, at the end of the game's production process, or even later. The inadequacy of legal regulations also increases the importance of international agreements and judicial decisions for the gaming industry. “While certain criteria and regulations may be taken into account in disputes concerning labor law and criminal law, what will be the legal protection in case of intellectual property violations?” the question comes up.
There is no consensus in the doctrine about which terms such as computer game, digital game, video game, computer (video) game should be used. While the Supreme Court includes the term digital game in some of its decisions, it uses the term video game in some decisions and the term computer game in others. The biggest Turkish game production companies usually use the term computer game. The equivalent of the word computer in the Dictionary of the Turkish Language Institution is "An electronic device, electronic brain, which performs and concludes a task consisting of many arithmetic or logical operations according to a pre-given program". Therefore, game consoles and mobile devices are actually computers. Therefore, it can be accepted that the concept of computer game covers all these varieties and the term digital game can be used in general.
Intellectual protection of digital games is ensured by Law No. 5846 on Intellectual and Artistic Works (“FSEK”) in our country. We will briefly refer to this law as FSEK in our article.
FSEK accepts science and literature, music, fine arts, cinema works and processing-compilations that have the characteristics of their owner as works. Works that are not included in one of these main types can be protected according to the unfair competition provisions of the Turkish Commercial Code No. 6102.
Every digital game is based on a computer program. For this reason, some opinions argue that computer games should be considered essentially as a computer program in the doctrine. Computer programs are created to achieve a specific purpose. Computer games, on the other hand, do not have a pure purpose. The game is designed to give pleasure and have fun. At the core of the game, a scenario and characters are presented, and the game can end in different ways. The point where it fundamentally differs from the computer program is the use of imagination.
Legal Nature and Protection of Digital Games
Computer programs were protected under Turkish Law with an amendment made in FSEK in 1995. With this regulation, computer programs are considered as works of science and literature in accordance with FSEK article 2. However, it may be misleading to think that computer games can be protected with these provisions, because computer games are complex formations.
They consist of visual and auditory elements, dialogues between characters and a separate scenario that combines all these. A game of protection for a computer program only can leave other game-making elements unprotected.
Pursuant to Article 1 of the FSEK, the Work is as follows: “Represents all kinds of intellectual and artistic products… that have the characteristics of the owner and are considered as works of science and literature, music, fine arts or cinema”. Article 6 of the FSEK regulates that processing and compilations will be considered works, provided that they bear the condition of the operator's specialty. The product, which does not fall under one of these titles, is not considered suitable for protection in the sense of FSEK, even if it is a work.
Turkish doctrine seeks three conditions for a product to be considered a work:
Requirement as to form ====> Include in one of the work types
Subjective condition ====> Particularity
Objective condition ====> Physical quality
The concept of privacy expresses the intellectual product between the work and its creator, so it is accepted that the work is the result of the intellectual effort of real people. However, for the works created by artificial intelligence, this strict character definition is starting to lose its validity. According to the new modern theory created as a requirement of our age, intellectual creativity is sought on the work, while the search for the reflection of the author's personality is ignored.
The mere idea that passes through the human mind may be excluded from FSEK protection, because the idea must be put into practice in order to benefit from the protection. The idea of the person who shares the idea of the game scenario with his relatives is also left unprotected within the scope of FSEK.
Although the types of works are determined by the method of counting one by one in the law in accordance with the principle of numerus clausus (limited number) in FSEK, this hard wall can be overcome due to some gaps in the law.
Many criticisms are made for these three conditions.
Review for terms of Science and Artwork
The protection of digital games as works of science and art under the title of computer program is insufficient. Because digital games are designed as formations far beyond computer programs. Contrary to computer programs with technical features, digital games feature more interactive, scenario, visual and auditory factors.
Review for databases protection
Creations belonging to the digital games industry and not a database of digital games. There is a basic purpose when designing games for digital entertainment and enjoyment. The information is targeted at certain target audiences. Therefore, it is seen that the database and digital games are kept in an inappropriate place to consider equivalent sectors.
Review for terms of fine art Works
Fine art works are based on aesthetic value, the obligatory element of the work is its aesthetic value. Digital games, on the other hand, do not have such an obligation, although there is an opinion that they have aesthetic aspects, they should not be evaluated in the same scope as this is an element of necessity in fine art works.
Review for embroidered work
An embroidered work is defined as a connected work that is not independent of the original work, but is recreated with the original work's peculiarity. As an example of processed works, we can give as an example the game versions of the Lord of the Rings series adapted to the cinema by Peter Jackson. There are also works that are the opposite of this and turned into a movie through the game. In other words, we call the new work that emerges with the processing of the original work. There is no significant debate in the doctrine as to whether digital games should be considered a work of art. Some authors think that when concrete conditions are met, digital games will be considered as works of art, while some authors think that digital games can be considered as inspiration due to disconnection.
Review for multimedia terms
Considering their interactive aspects, it is generally accepted that digital games can be qualified as multimedia works. However, the regulation of multimedia works within the scope of FSEK has not yet been found, and the acceptance of digital games as multimedia works as per the principle of numerus clausus (limited number) remains an opinion. Therefore, digital games cannot benefit from multimedia copyright protection.
Review in terms of cinematic work
The main reason why digital games are considered as cinematic works can be considered as they both consist of a series of moving images, are based on a scenario and concern the entertainment industry. In Black Mirror: Bandersnatch, released in 2018, the audience is given the opportunity to reach different endings by offering ways to choose. Among the cinema works, this is an exception because the scripts of the cinema works are written with a certain ending. In digital games, the player's decisions can shape the end of the game. A movie can be consumed by watching it, but in the digital game, the player continues to interact with the game all the time.
Although FSEK is a very old law, the number of works counted in this law is limited in accordance with the principle of numerus clausus. With the development of technology, many new types of artifacts have emerged that should be added to the concept of work, and digital games are considered one of the biggest reasons why FSEK is exposed to criticism in this direction.
The general acceptance is that digital games are most similar to cinema and multimedia works by their nature. Since multimedia works are not regulated within the scope of FSEK, it is thought that they can benefit from the legal protections provided to cinema works by bringing a broad interpretation. However, of course, this does not provide sufficient protection. . We see that a protection that will be the exact equivalent of the situations encountered during the creation and implementation of digital games can only be achieved when regulations that keep up with the times are made.
By Onur Kucuk, Managing Partner, Esra Gokce Saltik, Junior Associate, KP Law