This thesis considers how video games are protected by copyright in the European Union.
Specifically, it considers whether copyright provides adequate protection for video games, and whether their particularities necessitate a re-evaluation of the existing regime.
Video games are complex creations comprising programs and audiovisual elements,
including writing, designs, music, and performances; this alone presents unique challenges in terms of intellectual property protection. However, video games are also being developed,exploited and otherwise used in ways which raise important questions about how videogames are (or should be) protected; these ‘particularities’ -namely cloning, modding, user-generated content, streaming, esports, and the use of artificial intelligence- are therefore central in this analysis.
The thesis initially evaluates how patent, design, and trademark protection apply to videogames and their particularities. It concludes that, while useful in certain circumstances, these forms of protection do not effectively or comprehensively address existing issues, reinforcing the centrality of copyright.
The core of the thesis argues that video games, as complex copyright works, are subject to a distributive approach whereby conflicting directives -mainly the Information Society and Computer Programs Directives- govern distinct aspects of games. This status quo leads to a bifurcated determination of what is considered copyright subject matter, the scope of rights In that subject matter, and the beneficiaries of this protection. Furthermore, the analysis herein highlights and uncovers unresolved issues in how copyright applies to specific video
game particularities, exacerbated by a lack of harmonisation and inconsistencies in national approaches to video games by Member States.
The thesis concludes that a re-examination of European Union copyright law to better
address the particularities and complexities of video games is necessary to reflect the reality of how they are being developed and used. It proposes, inter alia, that a harmonisation of certain national approaches and a revision of exceptions and limitations is necessary, particularly in areas like streaming and esports, where a new exception is necessary to balance innovation and fundamental rights. Overall, it argues the need for a nuanced, realistic and, most importantly, updated legal approach to video games, to ensure that they are adequately and appropriately protected within the European Union.