The video games What regulation? Paul Van den Bulck Attorney at the Paris and Brussels Bars (Partner Ulys Law Firm) Lecturer at the University Robert Schuman (Strasbourg) Ulys Software law 16 may 2007

I.Introduction II.The legal framework of the video game itself III.The legal framework of the avatars in the video games IV.Conclusion

I. Introduction Different issues : - Minors protection - The legal framework of the video game itself - The legal framework of the avatars in video games Many doubts + lack of a legal definition about the video game

II. The legal framework of the video game itself A. Introduction Preliminary : Video games are likely to be protected by a copyright («droit d’auteur ») Atari v. Valadon / Versailles, Court of appeal, 18 november conditions to be fulfilled : - originality - form Question : What form for the video game ? Audiovisual work ? Software ? Look and feel ? Which rules apply to it ?

B. The legal qualification of the video game 2 conceptions : - the video game is a software - the video game is an audiovisual work A third conception consists of accepting a double qualification = belgian case law + doctrine The different conceptions have consequences for the rules to be applied example : who is the rightholder ?

1. Software or audiovisual work : legal frameworks a.The protection of computer programs European level : Directive 91/250 EEC of 14 may 1991 on the legal protection of computer programs Belgian law : - the 30 june 1994 Act on copyright (« droits d’auteur ») and related rights - the 30 june 1994 Act on the legal protection of computer programs

b. The protection of the audiovisual works The 30 june 1994 Act on copyright (« droits d’auteur ») and related rights No definition of the audiovisual work in the belgian law BUT : a definition can be given from the preliminary documents and from the french definition 2 Characteristics : - Images (with or without sound) - Movement

2. Case law + doctrine a.France : Prevailing conception : the video game is a software « Midway case », Supreme Court, 21 of june 2000 Rejection of the qualification as an audiovisual work : The interactivity of the video game is opposed to the linear sequency of images that constitutes an audiovisual work Versailles, Court of Appeal, 18 of november 1999 / Supreme court, 28 of january 2003, Cassaril v. Havas Interactive

b. USA : the 2 conceptions are retained : - Stern Electronics Inc v. Kaufman (1982) « Video games (…) can roughly be described as computer programs to create on a television screen cartoons in which some of the action is controlled by the player » « The visual and oral features of the audiovisual display are plainly original variations sufficient to render the display copyrightable even though the underlying written program has an independent existence and is itself eligible for copyright »

Explanation : - The source code and the object code could be protected as a software - Images and sound could be protected as an audiovisual work Case law : The 1st Instance Court of Brussel, The 12th december 1995 Nintendo vs Horelec c. The belgian case law and doctrine : coexistence of the 2 conceptions

Advantages and disadvantages Disadvantages - division of the protection (complexity) - difficulty to distinguish the different components of the video game - difficulty to conciliate the different specific legal systems Advantage - adapted to the reality of a video game taking into account all its components

3. Conclusion about the legal qualification of the video game The existing legal qualifications are not sufficient to understand the video games complexity Consequence of the issue : complexity and incertainties Example : the question of the ownership Solutions ? -creation of a specific system adapted to the complexity of the video games ? -the application of the double specific legal systems ?

C. Corollary of the controversy : the ownership of the video game (Belgium) Coexistence of 2 types of rules : 1.The software part of the video game The 30 june 1994 Act: article 6, al.1 The person who has created the program is generally the legitimate owner of the software Possible co-ownership When created in the scope of the work relationship, the employer automatically owns the economic rights, unless otherwise agreed, between the employer and the program creator (presumption of creation in favor of the employer)

2. The audiovisual part of the video game Specific regulation : The 30 june 1994 Act, article 14 A presumed authors list of the audiovisual work The presumption can be reversed Between the different authors : application of article 5 of the Law : indivisible work When created in the scope of the work relationship, no presumption in favor of the employer

3. Conclusion about the ownership’s issue Coexistence of 2 types of authors Complexity Question of the relationship between the author of the software and the author(s) of the audiovisual work ? - application of the indivisible work’s rules ? - nuance : in most cases : contracts between the editor of the video games and the different contributors (ordered work)

The rules applicable to the ordered work A written contract must be concluded between the creator and the person who gives the order (contrary to the collective work in french Law) Exceptions to the imperative rules relating to the granting of Copyrights whether the work is created in the field of the non cultural industry or in the field of the advertising : –The granting of rights in the field of the non cultural industry must not mention expressly the different means of exploitation, the royalties, the scope or the expiration of the rights 30 june 1994 Act, article 3, §3 BUT : The video game is generally considered as a non cultural work : So the exceptions do not apply to it

D. French Law : Debate 1.Introduction Debate on the legal qualification of the video game taking into account its process of development and its author Distinction between : - collective work - work created in collaboration The collective work does not exist in Belgium : generally, the ordered work rules apply to the collective work

2. The collective work a.Definition Intellectual property Code, Article L , al.3 = a work created on the initiative of a physical or a legal person who edits, publishes and discloses it under its own name and in which the personal contributions of the creators cannot be distinguished The (legal or physical) person who manages and takes under control the whole work detains automatically all the Copyrights on this collective work b.Case law Versailles, Court of appeal, 18 of november 1999, Jean-Marc v. Havas Interactive Europe Qualification of the video game as a collective work

3. The work created in collaboration a.Definition Intellectual Property Code, art. L113-2 Work created with the contribution of different physical persons The participation of each person can be distinguished from the others b.Case law Paris, Court of appeal, 2 of april 2004, Cryo v. Revillard Qualification of the video game as a work created in collaboration

III. The legal framework of the avatars in video games A. Introduction Development of new forms of video games : MMOG Assessment : - Emergence of a real on line trade of virtual objects on Internet - Some avatars are subjected to damages (rape, losing, etc…) Issues : - What are the different players’ rights ? Of the editor ? - Who has the intellectual property rights ? - Generally : which rules are applied to the avatars?

B. The intellectual property rights 1. « Copyrights » (droit d’auteur) Principles applicable to the video games and its parts the video game itself shall be protected by copyright (« droit d’auteur ») The fictitious figures and objects designed in the video game shall also be protected by copyright (« droit d’auteur »)

2. The issue Who is the owner of the copyright on the avatar? The editor of the video game as the owner and designer of the video game itself ? The video game player as the designer of his own figure, avatar placed in the video game ?

3. The different conceptions a. The editor is the owner of Copyrights on the avatar The avatar does not exist outside the software : The video game is exclusively made up « lines of code » programmed before its use by the game player The avatar is nothing more than « lines of codes », elements of the program : the video game user does not create anything The editor, as the owner of program is also the owner of avatars

b. The video game player is the owner of the Copyrights on the video game The avatar is a work in itself, independent of the software Case : Anshe Chung - reproduction of her avatar on the website Youtube - Anshe Chung obtained the suppression from You tube of the video which reproduced her avatar

Solution : distinction between « traditional crafting » and « modern crafting » Traditional crafting : - The creation of an avatar requires the fusion of other pre-existing objects. - The avatar does already exist in the database of the server Modern crafting : - The game player creates an avatar by using of a real modelling tool - The game player has the possibility to determine the type, the form, the style, the color … of the avatar - The avatar created by means of « modern crafting » could be protected by a copyright (« droit d’auteur »)

C. The damages under the MMOG legal framework 1. Issue An avatar or a video game player can be subjected to a damage in the framework of the video game Is a sentence possible in the « real » world ?

2. Examples - Cases Theft of an object attached to an avatar : Li Hongcheng Case - Theft of weapons in the Li Hongcheng’s avatar by another game player - Decision of the18th December 2003 (chinese court) : the editor is liable for the theft of weapons because of a lack of security on its servers Mr Bungle case : rape of an avatar by another avatar

3. The solutions ? a. Introduction Preliminary : Distinction between 2 situations - Cases where the avatar itself is victim of a damage - Cases where the video game player is victim of a damage Application of 2 types of rules - the General conditions of use - a possible approach : application of the « presumption of risks » doctrine

b. Application of the « presumption of risks » doctrine The core issues of the doctrine Doctrine applicable in sport’s liability The doctrine states that a participant to a sport activity in which there is any physical contact or a chance of injury assumes the risks normally linked with this activity Limits of the doctrine - applicable for injury that occurs during a sport activity - applicable in the field of extra-contractual liability

Conditions of the doctrine - the risk must be real - the risk must be accepted in all its components before the beginning of the activity - the risk must be knowingly accepted Exclusion of the risk that is not normally linked with the sport activity Example : a participant stabs another participant Application of the doctrine : case law France : Nantes, 26 of april 2001, CPAM v. Blondeau, « Olympique de Marseille »

Application to the video games -The « presumption of risks » doctrine shall be applied to the case in which a video game player claims to have suffered of his own damage (example : Mr Bungle case) -BUT : - the doctrine applies in the field of extra- contractual liability. So this cannot be applied to the relationship between the editor and the video game player - the conditions must be fulfilled : exclusion of the risk that is not « normally linked » with the sport activity (ex : a game player kills another game player)

c. Application of the general conditions of use = The « rules of the game » Could be additionnal to the « presumption of the risks » doctrine : to be applied to the relationship between the editor and the game player (but also to the relationship between the players themselves)

Examples The « Mr Bungle » case : - application of the «presumption of risks » doctrine to the relationship between the players - application of the rules of the game between the editor and the game player who is guilty example : the avatar of the guilty could be canceled by the editor

4. Conclusion about the liability A solution could be the additionnal application of the general conditions and the « presumption of risks » doctrine The difficulty shall be to place the limits between the cases covered by the general conditions of use and the cases covered by the general liability rules example : the rape of an avatar by another avatar? = a border line case

IV. Conclusion

Questions & Answers Paul Van den Bulck Partner at Ulys Law Firm (Brussels) Lecturer at U. of Paris XII and U. R. Schuman –Strasbourg-)