WIPOD – Intellectual Property Matters: Transcript of Episode 1

Classroom Conversations: FTW – Tapping into the Potential of IP in Videogames

Karen Lee: Welcome to Intellectual Property Matters. In this WIPO podcast, we explore the fascinating world of creativity, innovation and intellectual property. Let's listen, learn, and get inspired.

Natalie Humsi: Hello, everyone. Thanks for tuning in to the very first episode of Intellectual Property Matters. We're starting WIPO's newest podcast with the miniseries of Classroom Conversations. In Classroom Conversations, we invite experts, WIPO Academy alumni and partners to give bite-sized crash courses on a range of intellectual property, or IP for short, related topics and chat about the latest developments in the field.

Today, we welcome Dr. Gaetano Dimita, a senior lecturer in international IP law at Queen Mary, University of London, and an expert in his own right in the field of videogames and interactive entertainment law. We'll be talking about videogames and how intellectual property plays into this field. So to start off, I would like to ask a very, very, very important question. Gaetano, what would you say is your favorite videogame of all time? And if it's too hard to narrow it down, maybe you could just say your top three favorite videogames?

Gaetano Dimita: Now, I have to say I spend a lot of time with World of Warcraft. I'm a big fan of the work of the franchise from Blizzard Entertainment. So, I would say that's the videogame I play the most and definitely one of my favorites.

Natalie Humsi: What should I know the next time I play Subnautica or the next time any gamer plays their favorite game?

Gaetano Dimita: Of course I live in an IP bubble. I would like everyone to know everything about IP because I truly believe they are fundamental. And understanding about what they entail is fundamental for everyone. But in particular in videogames, since these are such rich IP creations and they are not static. In the sense that in fields like music, you can just passively listen to the creation, or to the form of art.

With videogames there is an active participation of the player, and this active participation can be creative. And actually, there are amazing examples in the last 20 years of videogame players that are a sensation. They are extremely good players, professional e-sports players, or they just play their videogame in such an entertaining and unique way that they have millions of followers watching them playing online on Twitch.

Of course, not everyone is a super pro or an entertainer, for instance, I’m one of the bad players, and I'm not particularly skilled anymore in playing videogames. But the way we interact with this form of entertainment does always have some IP coloring. So, it is fundamental for me. I would invite everyone to do one of the things that no one does: to read the end–user license agreement and the terms of services of the videogame.

Of course, there are different videogames, I'm not referring to someone playing a quick and hyper casual game on the mobile phone. But it is very important when you start investing so much time, so much of your energy, so much of your passion into a videogame, to understand what are the IP aspects that might be relevant for you in any case. And these end–user license agreements and terms of services, these documents, are actually the constitution of governance of the videogame you’re playing. So it would be important to understand what are your rights? What are you entitled to do with that particular videogame? Starting from the object that you obtain or the object that you actually buy using your own money in order to access them in the videogames.

Because there are a lot of misconceptions. I mean, from the basic one, people say “I bought the videogame, I own it”. That's not correct. You buy a license to play the videogame. So this has some consequences. It's not an issue of ownership and it’s the same with the object that you obtain in the game. Even if you put a lot of time, you put a lot of money, you pay subscription fees, you tend not to own them. I mean, there is no concept of ownership with the physical items. You do have some remedies in case you lose access to the account, or the videogame is discontinued without proper notice. There are consumer protection laws within the videogame. But it is important to understand that.

And in an environment in which videogames are not only played, but the playing of the game is shared on social media, there are a lot of players that get really involved with the universe created by the videogame, and so they create fan art, and they create stories based on the videogames.

It is important to understand what is actually allowed, what is licensed, and what you can do with those videogames? And even the tricky part: you want to play your videogames on Twitch. It's important to understand if you can share everything not only the videogame but also the music that is inside this videogame. Sometimes I mean these international global license structures, they are simplified in the end–user license agreement. Twenty years ago I would have never suggested to anyone to read them. They were really long, really often badly drafted but they're getting better and better. There are really nice examples of publishers that have a clear end-user license agreement and then they also have a translation, a non-legal translation on basically what you can and what you can’t do using the videogames. And they also give you an understanding of what is the culture of the community in this videogame.

So what are the guidelines? And since you have this strong connection with your videogames, this whole aspect I think is important to know. It is also a great educational tool I guess. For the first contract, probably everyone reads is an end-user license agreement. Definitely the first contract we sign, that youth sign, is an end–user license agreement, and most of the time they do it without reading it. And this is bad… you don’t want to become a Twitch sensation and then figure out that all your videos online have copyright infringement. And so, they get taken down and so forth.

Natalie Humsi: Yeah. Nobody wants to get a copyright strike on their videos of them playing games.

Gaetano Dimita: No it’s so stressful being flagged. And those are things that can be avoided with an understanding most of the time. For instance, the videogame publishers are okay. They provide very clear licenses to the content creators, explaining to them in simple terms what they're happy for you to do.

Natalie Humsi: And I think it's so true what you said. I mean, many people, their first contract that they sign is an end-user license agreement. People just do it without reading the whole contract. They just click, agree and move on to access the content and the game. And if there is an easily digestible version for a regular person to understand that would make it…

Gaetano Dimita: You are right and I honestly believe that is the key. And again, I want to make it a societal educational process because I am a hundred percent sure that the first contract is an end-user license agreement. But also, most of the time, the first money people spend is on videogames. When I say people, I mean the younger generation. I don't think my first money was on videogames, there were no videogames when I was a kid. But also, the first people that they meet outside of their family circle tends to be through videogames, and the first money they earn often could be on Twitch or on YouTube because they are posting videos based on videogames.

Now we have videogames that actually the game is to create other games. Roblox is an example. If you're playing Roblox, I would seriously suggest that you read the end-user license agreement to see how does it work. How and when I end up being successful with my game created on Roblox it would work? And it’s really easy to design your own videogame. So not only as a player, but also as a player of a videogame that allows you to create. And it's not only for the negative things, but also for the positive things. I mean, these community guidelines – these documents that videogame publishers are actually asking us players to sign – they are becoming a very strong, positive tool.

There are some community guidelines that would be really nice to have enforced outside of videogames. For example, be an active member of the community for the sake of being part of this community, because the more people are sharing and enjoying the game together, the better the videogame community is going to be. Imagine this the same conversation translated to whatever is outside of the videogame. I don’t want to call it the “real world” because I do believe that the community in the game is the real world too. But imagine if that was the Twitter or Facebook community guidelines, probably the world would be a little bit better. Yes, we can make the world better a videogame at a time, or more sadly, a contract, an end-user license agreement at a time. We could actually create this positive outcome. Because I do believe that people want to be nice, and actually especially if it is a rule to be nice.

Natalie Humsi: And just to break it down, for those who are listening, who might not know – what exactly are the intellectual property elements that are in the gaming world or in videogames?

Gaetano Dimita: All of them. And this is actually the reason I'm so fascinated as an academic in interactive entertainment in general, because those are very complex products or services that get distributed globally. I mean, the tendency is to have global distribution, but of course, because of local regulation there are a lot of times that videogames localize for a particular jurisdiction because… the saying goes “on the Internet, you are definitely going to infringe something somewhere”. So there is a tendency to, at least for some jurisdictions, to localize. But they are such complex and rich creative products and services in which all the forms of IP co-exist, or can potentially co-exist. It is a very rich IP environment so videogames can take from preexisting intellectual property in order to recreate this existing intellectual property. And that was kind of the story at the beginning. But now you see it inverted, videogames are the creators of new forms of IP that then get licensed out to other forms of entertainment.

There are a lot of films, novels, and music that actually derive from the IP of a videogame. Videogames are becoming really central. Probably because, and I don’t know the cause and effect, but they are the most successful of the creative industries. I mean the money generated by videogames globally is insane. I think already ten years ago, the videogame industry generated more revenue than film and music combined. So they create a new form of IP and there is a constant creation of IP, and all the forms of IP protection will be part of it. Of course, copyright is omnipresent. Everything that is original, of course, there are differences in jurisdiction on subject matter, specifically what aspect of the videogame can be protected by copyright.

But in Europe, for instance, if it is original and is determinable then it is protected by copyright. But then you have trademarks, which is a very strong form of protection in multiple aspects of videogames. And not only when it comes to the name of the publisher, developer, the title of the videogame and so forth, but also the objects within the videogames, items within the videogames, characters within the videogames can be protected by trademarks. And more recently with the possibility to register audiovisual marks, there are a lot of aspects of the gameplay that could be potentially protected by trademarks.

Patents are there because not only the hardware and software but an increasing number of game mechanics have been recognized by patent protection, more in the U.S. than under the EPC. But it is there.  They are inventions. The fact that they are inventions and that they are in the videogames doesn't prevent the possibility of getting a patent. And sometimes they are incredible inventions. I mean, life-changing inventions, for example if you think probably the first five to ten years of inventions connected to the Metaverse, this new incoming dream-like scenario. I grew up with Star Trek. And I want to see the Metaverse for real in my lifetime. But most of the investments in creating groundbreaking technologies are led by videogame companies, these companies that can see immediately a use of that invention inside of the videogame.

Then, of course, there is design, and design is increasingly important. At the European level, and if I'm not wrong but the moment I say it we are going to have a decision 24 hours later, but for now we don't have a court case on the enforceability of most of these design registrations with videogames. But it is a very powerful tool and it is available. And there are an increasing number of design registrations for items within the videogames – aspects of the videogames of the graphic user interface. And the list goes on both for use, creative use of third party intellectual property, and for the creation of the intellectual property per se, and sometimes it is also easier to qualify what is protected within the videogame than in general.

For instance when videogames are created on the basis of preexisting IP, that are more text-based, more literary-based, then you immediately get a translation of your imagination into something that is visible, creating multiple millions of new subject matter for protection under IP rights. And when you also consider how realistic they are becoming, you get into personality rights and the right to protect, to the commercial exploitation of someone’s images in case you are using celebrities in your videogames. There is an increased use of architectural buildings of real places within videogames to get a much more realistic look and feel. And there you go into the sideline of IP, for instance, the protection of cultural heritage. This is something that for instance Italy has very specific legislation on, as a lot of other countries do. They all become relevant because at the end of the day videogames for me are the purest form of creativity meets the latest technology. It is the most futuristic technology and it immediately gets distributed in a global environment.

So IP is everywhere. It is not only the blood, thinking of the money, but it is also the soul. And then, of course, trade secrets. I mean, you name it, it is very relevant to IP. Unfair competition is also extremely relevant to videogames. They are not games that is the bottom line. They are not just a form of entertainment, they are a very creative and interactive form of entertainment. And of course, you get the license, you get access to the videogames. You start playing. But remember, what you are doing while playing can be creative per se. It can be another layer of human creativity on top of a very creative subject matter. And I hope I'm going to spend the rest of my life doing research in this field. It is fascinating. Every time there is a problem or there is something that tickles my curiosity, often something with immense economic consequences for the distribution of the videogames, it is often the case that no one asked that before. So, it's the first time that that thing is happening.

Natalie Humsi: I'm curious as to cases where one videogame kind of oversteps on the territory of another videogame if there is an Easter egg?

Gaetano Dimita: Yes, I mean, it tends to be the funniest cases and the most complicated ones. We discuss them a lot. On one side of course, there is the crucial difference between copying something and being inspired by something that is really difficult to draw that line and videogames are a very complex state of existence with thousands and thousands of creators worldwide. I mean, and this is the classic lawyer answer: “it depends”. We go from cases of cloning, of videogames that are just created to recreate and to freeride on the success of preexisting videogames that tend to result in intellectual property infringement, whether it is copyright, trademarks or unfair competition. So there are those extremes, but videogames take from popular culture, and they became popular culture. So it’s not uncommon to have Easter eggs that are potentially infringing and then nothing happens. And because this is a community of creators, I mean, we have always to remember we started really early on.

And whichever date you assign to the beginning of videogames, you get it wrong. There are so many different opinions and theories of which one was the first videogame, which one was the first commercially successful videogame so let's put it eighties, early eighties. That’s when the videogame phenomenon started. It was a culture of cracking, hacking, copying, and doing it fast, and doing it well – focusing on the result. And it is a very shared community of creators, so I mean there are differences. But that is my personal opinion that there are in some cases these days, where they don't get enforced even if there is potential infringement. Sometimes, however they go to court, there is a tendency, especially from industry outside of the videogame industry to try to enforce.

There have been very important cases in the last 20 years in which the line between using something creatively within the videogame for a specific reason, so the artistic value, the artistic freedom on one side, and then the unjustified use of a third party intellectual property law had gone to court. I mean, there is a very important decision from a couple of years ago: Humvee in the U.S... The court actually showed that in order to create a war game in which you are playing a mission in a war zone, in modern war zone, the Humvee, that very famous Jeep from the U.S.A. Army, has to be there. Otherwise, it wouldn't be realistic. It wouldn’t give you the same sensation. You will feel something is off if it is not present in it. So, this is one extreme – but yes, American case.

You want to have an Easter egg or a cameo, if it is funny and you consider it cool and you really want to have it in the videogame, some publishers, they risk it, some others they are totally risk–averse and they try to avoid it. We saw, for instance, what happened with Dance Move in the U.S. So many cases were filed against really famous dance moves used in the videogame, but most of them were dropped at the end. Not because actually the legal analysis and understanding, as a quotation for instance, of what would be considered as quotation, or if there are any limitations or exceptions. For example can a dance move or dance routine be protected per se? These are micro questions. We do have some answers depending on the jurisdiction. We have some clarity, but those are 11 or 13… I mean, a number of cases have been filed in the U.S. and none of them in the end went to court.

On the other side, you have videogames that failed launch because they got into trouble. They forgot to clear a trademark or they didn't want to clear a trademark or there were issues for instance in the promotion of the videogames using a character that was easily recognizable as a real person and that was not authorized. So, there are thousands of cases. And of course, the spectrum from ok it is funny, it is an amazing joke, everyone is going to love it, even if there is infringement, you know the character is protected by copyright – to you are going to fail to launch your videogame because you didn’t clear your IP. So, it is an analysis that you have to do. It is becoming extremely complicated and time consuming to do this analysis. Imagine you know these open worlds that reproduce a futuristic environment with millions of images, screenshots with logos of companies, with fake companies, with music that is created in the videogame because the band is a character in the videogame.

No one wants to infringe on anyone’s rights. That is the basic thing, you try to do as best as you can. But even think about trademarks. If you create a fake company in your videogame and then you have to check everywhere whether or not there is a similar trademark registered anywhere on the planet. Thank God now we have online databases so it is all searchable, but still it is something you have to do. For instance, if I can make an example of trademarks, it is fascinating, because now we have very successful trademarks with connected merchandizing of companies that only exist in videogames. So there are t–shirt series, there are mugs, there are leather jackets, with logos of the companies that are all in successful videogames.

Natalie Humsi: I mean, videogames really are part of pop culture and they contribute to pop culture because of their interactive nature. In terms of the users, the players and the content that is generated there. And it makes me think about Roblox, for example, which is a platform where gamers can create their own games and then they can play each other's games. So it's basically a user–generated platform for games. And I feel like that's going to create such a murky territory for IP there. What would someone who's active on Roblox need to know?

Gaetano Dimita: Every time we try to translate to the general user the complexity of IP, there is a risk of getting something wrong. User–generated content is crucial to the videogame community. I mean, videogame players, they have a tendency to understand the technology, they know how to use a computer, they tend to be very creative people. So even before you know something like Roblox, you could play around with the Unreal and design your own videogames. Just there wasn't the social media factor that probably Roblox has been introducing. I've seen amazing things done on the Minecraft. I mean, actually Minecraft predates Roblox in this possibility to give users the power to enjoy the game as they want it.

There are amazing things that can be done. But when this IP complexity is done in businesses, the publisher or different publishers or developers, of course they do have IP support, they do have IP experts that would give suggestions. Of course then the final decision is always business. You just give alternatives, you give risk assessments when something needs to be done. When we are translating this power to create and commercialize a videogame to the user, you always either encourage them to either risk it… that you don't do it properly, as the licensing structures are the structures of the videogame, or you can even anticipate some things that could happen. Or sometimes there are things that you cannot authorize the user to do and so you tend to be silent on that aspect. And this creates complexity because the moment it becomes extremely popular and extremely successful then that is where the problems start to arise. I don't know if anyone ever tried. But you know what you can and what you can’t do when monetization from the providers starts happening. What are the rules of integration with third party software? But there are really long licenses and except for the developers or lawyers working for the developers to have a look and explain what these terms actually mean in practice. There is a risk of misunderstanding.

But then if you move to Roblox, there is an end-user license agreement that is complex. It determines everything that is going to happen to the videogame you create within Roblox. I mean, I don't want to give any answer on Roblox because it is something that is the focus of my current research. And also because I look at it as one of the precursor environments that is going to lead the way for the Metaverse. These are so basic. So yes, a lot of the things that we expect to happen, and in particular what I'm really curious about is how they are trying to create some governance for the users’ creations.

With Roblox, and you pointed it out correctly, we're looking at the platform that allows and I'm leaving the sentence open… I won’t complete the sentence. Allows what? This is another thing that I'm really curious to figure out because what is the service that is being offered? To what extent there is a governance of the platform over the creation and the community within the videogames? And how we will look at Roblox in the future or how this platform allows the further creation of communities? Because then you get into one aspect that is the creation. Another aspect is the derivative creation, the users’ creations based on preexisting IP. Also dragging from intellectual property from outside of this particular universe, and then within that videogame the possibility for mods, to create add-ons, to add your own creativity, to a videogame that is created by a user using third party software on a platform that is run by a partnership. And at the moment I'm still mapping. I’m still trying to find, you know, the research question to look at it properly. And when I say properly, because of course, I mean I'm not part of the video gaming industry – I'm a player that happens to be a researcher and an academic.

I'm much more curious in how this could be done in a way that is human-centric. I would like, especially now that we still can, to refocus everything on the user because the license can be created perfectly for the platform to protect the platform from liabilities to allow the platform to perfectly monetize on the creations of the users that are participating in this environment. But I think as an academic, I would like to focus my interest on us using those platforms. What are the consequences for us? And Roblox has been has been amazing.

The fact that there are so many younger people that are actually getting into, at the end of the day, a form of computer coding to create videogames. And then thousands, hundreds of thousands, or even millions of people, play those videogames and there is already an IP pipeline created – that's already amazing. The other questions are still open. For instance, there is a lot of concern from regulators for this particular platform because of course there are underage players, there are underage creators. And as for the early days of another platform, the Internet, there is a tendency to decide everything in order to avoid liability, to avoid problems, to push away anything that could go wrong. And here is where the discussion is going. I think almost everywhere, in all the jurisdictions I follow, there are ongoing discussions.

They are becoming very powerful platforms. They are becoming social media platforms. We should follow that. We should try to understand that. Firstly, and this is the question most of the regulators forget: whether or not there is anything that needs to be regulated? But I think because of their societal impact it is really important to have clarity, and I’m sticking to IP because this is my area of expertise and what I love. I don’t want to get into other forms of regulation, of community regulation and online regulation. But the idea I think, is fundamental that through videogames we actually teach and make people understand how important intellectual property law is.

There is the WIPO series on How to Make a Living in the Videogame Industry... You can make a living in the videogame industry! Creating a videogame is the basic old school way to do it, but there are so many professions that you can embrace while playing videogames. There are a lot of successful stories. The next generations tend to be more tech savvy than the older ones, and these platforms are actually teaching people to design videogames, and that’s amazing.

Natalie Humsi: Anyone who is curious about that, WIPO has a lot of resources, like you said, the publication How to Make a Living in the Videogame Industry, which you helped contribute to. And also, we have courses at the WIPO Academy which cover basics of IP that could be of interest to anyone.

Gaetano Dimita: I myself am proud when people ask me what I do and I tend to answer that I teach videogames. I cannot leave the law part out of it but it is something that really makes me happy. It was something that started as a hobby and now could be the main source of income. And of course, not everyone is going to end up teaching videogame law. But I mean, it is a thing, for instance, in law school that didn't exist when I went to university. Now it is a course, I mean you can specialize in interactive entertainment law or videogame law in some universities. That is incredible. And the saying that probably your kids will do something or they will have a job that doesn't exist at the moment. That is very true.

Technology is evolving so fast so probably the next generation, they're going to do stuff we cannot even imagine now. And so, videogames can be the key to access these forward thinking environments. And the fact that now with Roblox and with other more old school programs, you can actually do it yourself, you can actually have an idea for an amazing adventure and you can actually first show your friends, and your family, or put it online and then have other people playing what was originally just in your head. I mean, 30 years ago it would have taken a team of numerous people with different skills in order to transform your vision into something playable. Now you have to put your time in. Then you have to learn how to use the software. But it's so much easier. And this is giving us a lot of amazing IP, playable experiences. I mean, as you can hear, I'm particularly passionate about this topic.

Natalie Humsi: Many people are passionate about this topic and it would be great for them to tap into it.

Gaetano Dimita: And I think that the link shared on the WIPO website. There is the second edition of “Mastering the Game: Business and Legal issues for Videogame Developers”. So, if someone wants to learn more about it – it is free to download. This is one of the amazing things about the WIPO publications: they are there for everyone who wants to read them.

Natalie Humsi: And also, if anyone wants to learn more about what IP is and the basics of it, a great starter course is the General Distance Learning Course on IP, the DL-101, which is a WIPO Academy staple. So, those are also available resources for those wishing to learn more. But this brings us to the end of our classroom conversation for today.

Thank you so much, Gaetano, for all these awesome insights into videogames and the industry overall. And most importantly, I want to thank our curious listeners for tuning in, and we'll catch everyone next time on Classroom Conversations. Thank you.