With mounting discussion about digital gaming in Malta, it must be highlighted that this industry will need more than a group of people qualified in the ICT and digital creativity areas. Initiatives like the Digital Games Fund are not enough. Digital gaming is an industry that not only requires such creative minds but also several good legal ones as well.

Video games have come a long way since the old days of Pong. Studies have shown that this is an industry that effectively dwarfs most other entertainment industries.

Some products carry such high production values (running into millions) that the end product is occasionally indistinguishable from an animated film. As such, while Malta looks at this industry as a welcome driver for future economic growth, it is important to learn from the experience of other countries that have wrestled with a variety of legal issues in this area since the early 1980s.

A video game is an intellectual creation – software that creates an artistic effect. It stands to reason, therefore, that just like any other ICT industry, it requires a great deal of expertise in the area of intellectual property law.

It has been seen, time and again, that the wide variety of cases in this industry revolve around intellectual property, particularly matters of copyright and, to a lesser degree, matters relating to patents.

One of the key factors in generating international investment in this area requires a robust legal framework that can facilitate the growth of the industry in Malta. The following discussion will provide a brief taste of the issues that can arise.

Copyright law can arguably be considered the cornerstone of this area. Since a video game is effectively art and software enjoyed by way of a platform, both the art and software need effective protectection.

Naturally, even the technology of the platform would need to be protected, although this can be considered separate from the video game itself. Software is already protected under Maltese law as a work of literature, just as it is protected in all EU member countries. The point of contention arises mainly in the case of the output of the software.

With software, it is mainly important to consider that not only is the actual software itself protected under copyright law, but also the ‘preparatory design material’ used to create it. This principle is in line with the World Intellectual Property Organisation’s (WIPO) provisions under the Berne Convention, as well as Directive 2009/24/EC. This effectively means that Maltese law ought to be on par with laws in other EU member states in the protection of software from a copyright perspective.

Very often, since games are designed using widely available engines (the Unreal Engine being a prime example), the preparatory material that would lead to the final sequence of code is potentially more important than the code itself. This is why this measure is particularly important for video games, as a lot of the design of the software is actually preparatory in nature.

With regard to the output of the software, US law has considered this to be clearly an audiovisual work since the landmark case of Stern Electronics Inc. vs Kaufman. In the EU, this is less clear-cut, as there is no specific law or authoritative case law clarifying the matter as yet.

While arguments exist for and against this approach, there is no denying that giving joint protection to the music and the images created by a video game will certainly make court procedures simpler if they should ever arise. I shudder to imagine how applications and judgments would read if every one of them had to treat each component of the output separately.

The Copyright Act already provides for such protection, and if this is extended to video games, this would afford the industry a satisfactory level of protection, as well as lead to the courts being more efficient in their approach to such matters.

Generating international investment in this area requires a robust legal framework that can facilitate the growth of the industry on our shores

With regard to whether patent protection should be extended to video games, I am firmly of the opinion that this would have a counterproductive effect on the industry in Malta, particularly in the early stages. This is due to the possibility of ‘patent trolling’, which has become a big problem in the US over recent years.

This is the registration of patents by non-practising companies that use the patents simply to capitalise on the proceeds from infringement lawsuits. Naturally, fledgling de­signers would likely prefer a jurisdiction where this is not a risk.

While the above should give a very general overview of the intellectual property issues related to the digital games industry, it is important for Malta to consider these matters carefully so as to avoid being taken aback once this type of industry gains steam. Otherwise, the dream will be short-lived and investors would likely take their initiatives elsewhere.

Matthew Galea Debono is an associate with Fenech Farrugia Fiott Legal.

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