Intellectual Property Protection over Video Games

Zeynep Erkan, LL.M.

What is the essence and scope of the protection extended over video games under Turkish Intellectual Property Protection Regime?

1. What is the Concept of “work” in terms of the Law on Intellectual and Artistic Works (FSEK)?


For an intellectual product to be considered a work within the scope of FSEK, it must meet certain conditions. First, there must be an intellectual product that emerges and takes shape as a result of an intellectual effort. Since intellectual effort is unique to humans, it is accepted that the products created by machines cannot be described as works.


For the intellectual product in question to be protected as a work, it must be shaped in the outside world. An idea that exists only in a person's mind cannot be protected as a work.


The intellectual product must bear the characteristics of its owner. Particularity is the element that shows the individual characteristics of the mind that created the work and reflects the talents of that person in the work. It expresses the bond between the work and its owner.


In addition, the intellectual product in question must be included in one of the work groups listed in FSEK. In Articles 2, 3, 4 and 5 of FSEK, the groups of works are determined as scientific and literary works, musical works, fine arts work, and cinema works. The types of works specified within the scope of FSEK are listed as numerous clausus; so, it is limited in number.


2. What is the Concept of Video Game Under Turkish IP Law?


In general terms, there are many definitions of video games. In our opinion, the most comprehensive definition is as follows: “Developed for the purpose of playing on computers or other electronic devices (consoles such as Xbox, Playstation, Nintendo, or phones or handheld consoles such as PS Vita), interacted with the help of some electronic tools and an interface connected to the gaming device, as a result of the interaction. It is an interactive production in which moving images emerge and visual images are reflected.”


Generally, games are grouped according to their subjects as follows: Action games, adventure games, Arcade games, shooter games, role playing games (Role Playing Games, RPGS), simulation games, sports games, racing games and strategy games. A game may fall into only one of these groups, or it may fall into several of them.


3. What are the Elements of Video Games That May Qualify as Works?


Video games have a complex and multifaceted structure that holds an important place in modern culture, and they contain many elements that come together from different disciplines and produce a great creative effort.


Visual Elements:


- Photographic images (in giff, tiff, jpeg etc. formats)

- Fluent images taken with digital recording (MPEG format, etc.)

- Animation

- Live Motion Capture

- Articles


Auditory Elements:


- Musical compositions

- Music recordings

- Speech recordings – human voice recordings

- Sound Effects from External Source

- Built-in Sound Effects


Computer Codes (Source and Object codes:


- Primary game engine and/or other engines

- Linked codes

- Plug-Ins

- Comments


In addition to these, the story on which the game is based is also an element in itself.


Considering that the above-mentioned elements are present together in video games, it will be possible to call video games multimedia products, since products that are not among the four main types of works regulated in the Law but contain the types of works listed in the law, are called "multimedia products". Multimedia products are essentially the integration of different categories of works using new technology. There is no separate regulation regarding multimedia products in FSEK.


4. Holistic Evaluation


As stated above, four main types of works have been determined in FSEK, and it is not possible for an intellectual product other than these types to be considered a work. In practice, video games are also considered computer programs. In the decision of the General Criminal Assembly of the Supreme Court of Appeals dated 19.06.2018, numbered 2017/642 E., 2018/295 K.; "It must be accepted that computer games, which are mixed works in terms of many elements they contain, will be subject to the protection provisions regarding computer programs because they are software-based, in other words, they are constructed and constructed on computer software that has the characteristics of a computer program."


It is debatable whether this characterization is appropriate in practice. FSEK art.1/B f. g, it has been regulated that computer program refers to "a computer order system organized in a way that enables a computer system to perform a special operation or task, and the preparatory work that will ensure the formation and development of this order system..."


In the doctrine, it is stated that a video game can be protected as a cinematic work by evaluating a concrete event or can benefit from the protection of a computer program by analogy, and some authors argue that protection as a cinematic work predominates here.


In the case subject to the decision of the Council of State dated 1994, the plaintiff, a computer game importer, filed a lawsuit due to the fact that the game discs and cassettes he imported were not stamped, and the local court ruled that the labeling application of the Cinema Video and Musical Works Law No. 3257 was brought only for the protection of cinema works and Turkish musical works. He refused. As a result, the decision of the administrative court was appealed and the 10th Chamber of the Council of State ruled that computer games, which contain a set of commands that enable the computer to reproduce moving and sound images within the framework of a certain mise-en-scène or scenario, from computer programs that are scientific and literary works within the scope of the relevant law, Cinema No. 3257. Stating that they are within the scope of the Video and Musical Works Law, it clearly ruled that the games will be within the scope of cinematic work protection.


In Turkish law, computer programs are protected as scientific and literary works within the scope of the Law on Intellectual and Artistic Works. This protection includes the underlying ideas, principles and logic of the computer program; However, it is revealed through the use of codes, especially in the way they are expressed. In cases of disagreement that arise in practice, the focus is on the similarities and differences between the codes, not the results of the programs. In this context, it is not the similarity or sameness of the results of the programs that is important, but the differences in the expression of the codes.


Considering all these factors, assessing the nature of video games as works in the Turkish legal system is a complex process. The fact that video games are computer programs with their visual, audio and story elements create a need for a different legal perspective. Developments in practice show that legal regulations and definitions in this field may evolve over time. At this point, it is important that the law keeps up with technological developments and provides protection compatible with the diversifying facets of art.

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