CHAPTER ONE 1.0 GENERAL INTRODUCTION 1.1 Background of the Study Video games are complex works that can embody multiple creative works of authorship (e.g., computer software, graphics, sounds, musical works and performances, and scripts), compiled in a creative fashion that requires human interaction when run on an audiovisual device.1 Video Game has been defined as an electronic game that involves interaction with a user interface to generate visual feedback on a video device such as a TV screen or computer monitor. The word Video in Video Game traditionally, referred to a raster display device, but as of the 2000s, it implies any type of display device that can produce two or three dimensional images.2 Video Game is also a game played electronically by manipulating images produced by a computer program on a monitor or other display.3 The first Video Game was created over 50 years ago by Steven Russel, a student from the Massachusetts Institute of Technology (MIT) in the US, wrote the code (rudimentary by today’s standards) to create “Space War”, a game in which two players operate missile-firing spacecraft in an attempt to destroy the other. Although video games by their nature have a visual interface, in the early years, the creators of this new class of works were exclusively engineers and computer geeks.4 Majority of us must have come across video games at some point in time in our life, living in the digital age marked by spurring developments in graphic technologies, one can hardly stay immune from video games. Today, video games have become one of the prime choices of children of all age groups, and the markets are flooded with all sorts of games targeting children of various age groups. These games today are not only confined to young minds, in fact going by the available statistic, about 28 percent of game players in the world are below 18 years of age, whereas 32 percent of game players are 36-plus years.5 Video games are no longer just a popular medium of entertainment among teenagers but even for adults.
Intellectual property law is an area of law which is concerned with legal rights associated with creative effort or commercial reputation and goodwill. The law deters others from copying or reaping away the valuable reputation acquired by the trader or manufacturer or taking unfair advantage of his work and provides remedies where this arises.6 Intellectual property (IP) relates to intangible assets, including inventions, brands, new technologies, source code and artistic works. More specifically, IP pertains to patents, trade-marks, copyright and industrial designs. IP also extends to trade secrets and confidential information.7 However, these latter two categories are not governed by a specific statute, unlike the other kinds of IP in Nigeria.
Since the launch of the first mainstream game console by Nintendo in 1985, video games have become a global industry worth an estimated US$65 billion. It is the fastest growing sector of the entertainment industry and an important driver of economic growth, creating millions of jobs, generating much-needed tax revenues and offering exciting opportunities for talented creators and engineers from all corners of the globe. Unlike other creative industries, video games draw on the worlds of both technology and creativity. They fuse cutting-edge technology and imaginative artistic expression. The computer code underlying a game transforms ideas into rich expressions of visual art which come alive on a range of devices, consoles, computers, tablets and smartphones.8 Video games are complex works of authorship, containing multiple art forms, such as music, scripts, plots, video, paintings and characters, that involve human interaction while executing the game with a computer program on specific hardware. Therefore, video games are not created as single, simple works, but are an amalgamation of individual elements that can each individually be copyrighted (i.e., the characters in a given video game, its soundtrack, settings, audiovisual parts, etc.) if they achieve a certain level of originality and creativity.9 In the video game field, there are multiple genres of games, including action games, action-adventure games, adventure games, role-playing games, simulation games, strategy games, music games, party games, sports games and trivia games. The constituent elements of each type of game and, more precisely, within each specific game will vary. However, all video games share a common element: “the computer program that runs the game”.10 Advances in technology have also dramatically changed the games themselves, spawning a wide range of new formats, stories, and genres. Games are in fact as varied as the imagination of the developers, featuring realistic graphics, voice-overs, use of motion capture technology giving characters, fluid movements, music equal to film scores and original story lines.11 While Video Game Industries still dominated by multi-billion dollars hardware companies such as Sony, Nintendo, Microsoft, Apple, and Samsung and publishers such as Activision, Electronic Arts (EA) and King (mobile), new technologies have opened up the gaming industry to many new independent developers. Word Intellectual Property Organization (WIPO) recent publication, “Mastering the Game: Business and Legal Issues for Video Game Developers” provides established developers as well as new market entrants with information about how to develop a proactive strategy to secure the IP rights in their work for its distribution and use. The guide explores, in very practical terms, the range of legal and business issues facing developers at various stages of the process of developing a game and transforming it from a concept into a marketable product. It further underlines the importance of negotiating contracts to define who owns the IP rights in the work.12 Within 24 hours of the release of “Grand Theft Auto 5” in September 2013, the game earned more than $800 million US dollars and sold more than 11 million copies worldwide. Within a record-breaking three days, sales hit $1 billion US dollars. In comparison, the biggest movie hit of the summer of 2013, Iron Man 3 brought in worldwide sales of only $372 million US dollars in its first weekend.13 Again, within 24 hours of the release of “Microsoft’s Xbox One” and “Sony’s PlayStation 4” consoles in November 2013, over 1 million units of each were sold. Within 18 days, sales for each console hit the two million mark.14 Online revenue for video games including digital delivery and subscriptions increased to $24 billion US dollars in 2012. Similarly, mobile gaming generated between $8 to $12 billion US dollars in revenue in 2012 with game apps, dominating the iOS and Google Play app stores.15 In Nigeria, Video gaming is a relatively young sector. As of 2015, the video gaming sector is still very small in the country, with only half a dozen young companies creating games. However, in part due to the country's fast growing mobile market and its young population, video games are rapidly growing in popularity.16 Large western companies such as Electronic Arts and Gameloft have been profiting the Nigerian game market since 2012.Meanwhile, large console manufacturers such as Microsoft and Sony have little interest in the country and though the Xbox 360 and PlayStation 3 are reasonably popular, services as Xbox Live are not available in Nigeria and video game piracy is common.17 There are only Three (3) known Video Games developers company in Nigeria, namely; Kuluya, Gamsole and Maliyo Games, each based in Lagos and focused on mobile gaming, they were also considered among the most important game developers in Africa in 2013.18 Intellectual Property rights are associated both with the tools used to develop games and the content included in a game. There are also different innovative components in a specific video game speak to various types of IP rights. For instance: Copyright safeguards the creative and artistic expression that goes into the software (the code), the artwork and the sound (and music) of a game. If developers want to create a new work on the basis of an existing copyrighted work, a so-called derivative, then they must first secure the appropriate licenses from the copyright holders. An example of a derivative work is “Shrek” the game which was based on Shrek the film. The process can also work the other way, when filmmakers want to develop a film on the basis of the story line of a successful game they too must secure rights from the right holders of the original work, for example, Doom the movie was based on Doom the game.19 Trademarks protect the names and logos associated with a game and its characters and can be used to set a company and its games apart from others in the minds of consumers.20 Patents protect the next generation hardware (and are particularly important for hardware manufacturers) or technical solutions as well as the inventive game play or design elements.21 Confidentiality/Trade secrets can be used to safeguard a company’s competitive advantage by protecting confidential business information, such as contacts or subscriber mailing list data, or an in-house development tool.22 All the above Intellectual Property rights that are associated with developing of and can be found as a component of a specific Video Game, are available in Nigeria, and this research will dwell to ascertain such rights and try to provide relevant provisions that can be used in order to safeguard Video Games and give the Video Game’s developers and companies’ peace of mind, that they are protected by the law, and no one can reap or take advantage of their creativity or reputation within and outside Nigeria.