I- Introduction
Mobile games pertain to interactive entertainment products designed for
portable electronic apparatus, encompassing mobile phones, tablets, and
handheld consoles. They are typically available for download, free of charge,
from digital repositories dedicated to mobile applications. Monetary gains are
garnered through in-game advertisements and transactions within the game
interface. Owing to the proliferation of smartphones and the burgeoning
presence of novice mobile game developers, accessibility to mobile games has
substantially augmented, thereby nurturing industry expansion. Eclipsing
alternative video game genres, the global financial receipts amassed by the
mobile gaming sector amounted to $152 billion during the fiscal year 2022,
attesting to the industry's salience and potential. Nonetheless, ambiguities
prevail concerning the legal safeguards extended to mobile games.
Pursuant to the Intellectual and Artistic Works Act (IAWA) within the
jurisdiction of Turkey, the recognition and safeguarding of an intellectual
creation as a work are contingent upon the fulfilment of three fundamental
prerequisites: the formal prerequisite, the objective prerequisite, and the
subjective prerequisite. [1] The formal prerequisite stipulates that the
intellectual creation must squarely fit into a specific category of works
delineated within the legal framework. The objective requisite posits that the
idea must be capable of being manifest in a discernible form. The subjective
prerequisite mandates that the intellectual creation must exclusively pertain
to its originator and possess a degree of uniqueness.
In the context of mobile games, the subjective prerequisite finds
compliance when there exists a personal and distinctive input in the
advancement of the game. The objective prerequisite attains fruition upon the
material manifestation of the game, which is subsequently disseminated through
digital platforms, accessible for download by the gaming community. Notwithstanding,
a dilemma arises regarding the formal prerequisite. This concern arises due to
the fact that games inherently avoid categorisation within the scope of
specified work classifications outlined by the IAWA or established
international agreements. This conundrum gives rise to an atmosphere of
uncertainty regarding the legal status ascribed to games.
II- Appraisal within the Framework of IAWA
Mobile games, within the purview of Turkish Copyright Law, currently remain
beyond regulatory oversight. Consequently, it is imperative to ascertain the
constituent aspects of a mobile game that merit classification as a work. This
preliminary determination lays the foundation for subsequent discourse
involving the categorisation of the mobile game within the framework of
distinct work categories.
Present-day mobile games are distinguished by the fusion of three
foundational components, namely visual, auditory, and software elements. Visual
components encompass discernible aspects comprising the game's setting,
characters, objects, and symbols. Auditory components encompass sound elements
integrated into the game, encompassing musical compositions, and surrounding
auditory environment. Software components encapsulate the programmatic codes
and source codes instrumental in the game's development. These software
components harmoniously interact with the visual and auditory elements, thereby
underpinning the interactive dynamism of the game.
In this context, thoroughly assessing all three main parts of mobile games
requires matching them with the specific types of works defined in the IAWA.
For games that skilfully combine these different parts, an important idea
called the ‘multimedia concept’ emerges. The multimedia concept is a necessary
framework wherein various assessments will be undertaken, including the smooth
blending of visual, auditory, and software parts within the IAWA's different
work categories.
It may be contended that mobile games potentially qualify for protection in
a similar way to computer programmes, primarily due to their intrinsically
interactive nature. However, a complete assimilation of mobile games into the
category of computer programmes encounters limitations. The central concern
lies in the exclusion of their visual and auditory components. It is important
to underscore that mobile games represent intellectual creations, wherein
different elements come together to create interactive content for user
enjoyment. In contrast, computer programmes typically manifest as intellectual
constructs geared towards technical functionality. In a discerning
pronouncement rendered by the Court of Justice of the European Union, it is
expounded that the realm of computer games transcends the confines
circumscribed by computer programmes. [2]
Like movies, mobile games use a sequence of moving images to create an
immersive virtual world. Cinematic works described in Article 5 of the Turkish
Intellectual and Artistic Works Law (IAWA) go beyond traditional films.
However, there is a difference between mobile games and movies, especially due
to the involvement of software. While some aspects of mobile games might fit
the definition of cinematic works in certain situations, a complete categorisation
as cinematic works is not feasible. Mobile games rely on software for
interactivity, a feature not found in movies. Therefore, considering mobile
games as purely cinematic, especially those closely resembling computer programmes,
is not accurate. It is better to avoid broadly labelling mobile games as
cinematic works. However, specific elements like moving image sequences and
game characters need careful thought and protection based on established
criteria. [3]
The final aspect under consideration pertains to multimedia. Multimedia is
a special type of creation where different forms of art come together in a
digital space, allowing users to interact with them. Instances of multimedia
encompass interactive television productions, museum guides, e-commerce product
catalogues, and video games. However, a debated issue arises when it comes to
categorising video games as multimedia. This is mainly because video games
combine elements of movies and software. Given the absence of explicit
regulatory provisions within the Turkish Intellectual and Artistic Works Law (IAWA)
governing multimedia constructs, the proposition of inventing a novel
classification to encompass mobile games may not align with established legal
practices. Nevertheless, it is possible to consider mobile games as a form of
multimedia due to their mixed nature.
The
core legal principles support the idea that different parts of mobile games can
be protected under various types of works. The
software part, which is like the game’s brain, might get protection as a computer
programme. The characters in the game could be protected in a similar way to
fine art. Additionally, the auditory composition, inclusive of
music, could conceivably be safeguarded as a distinct musical work.
Nonetheless, an academic discourse persists with regards to the overarching
protection accorded to mobile games in their entirety. While two predominant
classifications, namely computer programmes and cinematographic works, arise,
it is
suggested that adding a new group just for multimedia works. This
idea comes from how games combine elements from these two main groups.
Another important aspect to consider when protecting the intellectual
property of mobile games is the idea of public disclosure. Public disclosure
happens when an intellectual creation is shared with the general public with
the author's permission. [4] This concept is crucial in Intellectual Property
Law because it marks a point where the work can be financially used. Given the
influential role played by independent producers in the mobile gaming industry,
this principle becomes even more significant.
This becomes important, especially when game producers, who work
independently, sell their games to big companies. In these transactions, they
often need to share certain ideas and technical details. Because the typical
secrecy used in business does not work for mobile games, other legal methods
become more important. In this context, using a confidentiality agreement is a
suitable choice.
A confidentiality agreement is a formal contract designed to prevent the
sharing of technical or business information. Because mobile games involve
various aspects, some of which might not meet the requirements for intellectual
property protection, using a confidentiality agreement is a sensible choice.
Having such agreements in place is especially important now, given the current
situation where there is a rapid increase in independent mobile game creators
working at the edges of the industry. By using this practical approach, mobile
game developers can strengthen their position and legal options if there are
potential violations.
Another important issue that needs attention is the practice of game
cloning. Game cloning refers to intentionally creating a game that is very
similar to a successful one by copying its unique features. This has become
quite common. Mobile games are especially vulnerable to cloning because they
can be quickly consumed and easily copied. The trend of cloning successful
games can go unnoticed among the flood of new games being released on mobile
platforms, resulting in unfair financial gain through the unauthorised
replication of profitable paid games.
To determine if a game is a clone, using the ‘must-have scenes’ principle
offers a sensible method. This principle involves carefully examining whether
the copied elements are broad themes or unique, original creations. To
complement this approach, mobile app stores should create effective filters to
prevent cloning from infiltrating the mobile gaming market. Suspending or
closing accounts of those who create clone games can be a strong measure to
protect the rights of the original creators, helping to reduce the risks of
unauthorised copying.
Another issue that can come up in the world of mobile games is when other
people use the characters from a mobile game without the author's permission.
This worry comes from the fact that mobile game characters can become popular
on their own, separate from the game itself.
The way fictional characters are legally defined leads to debates because
they exist both within the game and on their own, able to be protected
separately from the game itself. However, it is significant to highlight that
this protection only applies to characters with noticeably unique features. The
standard set by the Nichols v Universal case gives a legal framework to assess
if a character is distinct and original. It makes sense to use this criterion
as a guide to decide if mobile game characters should be legally protected.
Firstly, for a character to be protected by intellectual property law, the
character that is claimed to be infringing must be noticeably unique. At the
same time, the character being claimed as infringing must bear sufficient semblance
to the original character to make a valid claim of infringement. If a claim of
infringement is proven, the author can take legal action using the options
outlined in Articles 68-72 of the Intellectual Property Law, including civil
and criminal routes.
III-Conclusion
In conclusion, mobile games have rapidly gained popularity and become
valuable intellectual creations with commercial significance. This rise in
significance has also led to more legal disputes related to mobile games.
However, there is a lack of clear legal guidance both within Turkish law and
international frameworks for effectively resolving legal disputes related to
mobile games. Therefore, there is a need for more in-depth research and
regulatory efforts to reduce these ongoing uncertainties.
Yet, it is contended that mobile games inherently combine different
aspects, supporting the idea that they could be protected as multimedia works.
While this makes sense, it requires adding a new legal category for multimedia
works, which is not currently present in the law. Until such a change is made,
the different parts of mobile games will be protected under various existing
categories, depending on how they qualify for protection.
Att. Merve Hilal Menteş
Translated by: Sude Çapoğlu
References:
1. Cahit Suluk, Rauf
Karasu, Temel Nal, Fikri Mülkiyet Hukuku, 6th Ed., Seçkin
Yayıncılık, Ankara, 2022.
2. Mustafa Aksu,
Bilgisayar Programlarının Fikri Mülkiyet Hukukunda Korunması, Institute of
Social Sciences of Istanbul University, İstanbul, 2006
3. Yakup Bal, Mobil
Oyunların Fikri Mülkiyet Hukuku Kapsamında Eser Olarak Korunması, Fikri
Mülkiyet Hukuku Yıllığı, Yetkin Yayınları, Ankara, 2021
4. Ünal Tekinalp, Fikri
Mülkiyet Hukuku, 5th Ed., Vedat Kitapçılık, İstanbul, 2012
