IP Rights SIG/IP in Code
International Game Developers Association
Table of contents |
[edit] IP in Code
When the gamer loads up your game, all he sees is the surface layer. But beneath the wizards, jet fighters, spaceships and fantastic landscapes lies something meaningless to most gamers but of vital importance to you – the code. Without the code, a game is little more than a great design document and a lot of individual art pieces. For the gamer, the code is the invisible heart of the game; for the developer, it is the beating heart of your business. Fortunately, intellectual property laws offer an array of tools to protect software code: in addition to the same sort of copyright protection available to the visual artwork and story components of a game, software code may be further protected by patent and trade secret laws.
[edit] Copyright
Game code is made up of many parts, with different authors and different companies to which those copyrights are assigned. Many developers use or purchase basic libraries to more quickly build their game. They may also reuse code used for a prior game (theirs or another). When developing the code it is important to consider the appropriate copyright notice to place in each file header. In some cases more than one copyright may apply to the file.
Often samples and example code are distributed for free access and use on companies' web sites or newsgroups. The copyrights for these should also be noted, and copy of the permission preserved in case a future dispute arises.
In the US, copyright of code requires that the developer submit the first and last 20 pages of code with their registration. Practice is to include the main loop of the code, plus some modules that do not represent sensitive areas (since this material will be made public).
NDAs, development licenses, and game development contracts will often determine the ownership of copyrights for material associated with the game.
From the early days of computing through to the present day, the exact scope of copyright protection for software has been the subject of ever-changing debate. Whatever its boundaries, copyright law clearly protects software code. As in other copyright contexts, the useful feature of U.S. copyright law is that you do not have to take any action to enjoy copyright protection. Copyright automatically attaches to "original" works "fixed in a tangible medium". In the U.S., copyrights may be registered with the U.S. Copyright office (http://www.loc.gov/copyright) and with the US Customs Office (http://www.customs.gov/) in order to protect against the importation of illegal copies. Two international copyright treaties, the Berne Convention and the Universal Copyright Protection, have been accepted by a wide range of countries. The U.S.. Copyright Office offers advice on registering under these treaties, as well.
[edit] Patent
Unlike the visual art and written stories of games, software code may be eligible for patent protection. As for other patent areas, in order to enjoy patent protection, software code must be "novel", "non obvious" and useful. The code itself is not patentable, however, unless it is described in the context of solving a particular problem, and in association with a particular piece of hardware (even if generalised to be a computing device).
As with copyright, the assignment of patents is often defined in NDAs, developer licenses, and development contracts.
Unlike copyright, once an invention has been used in a game that has been offered for sale (to a publisher, etc) there is a one year clock to initiate the application in the US patent office. So patent protection needs to be established during early R&D, before the developer knows for certain the value of the invention. Once the clock expires, the invention is then either in the public domain or a trade secret. It is not possible to take a longstanding trade secret and decide to later apply for a patent.
With patents, there is no such thing as automatic protection, and a U.S. patent only offers protection in the U.S. The process of applying for a patent is complex, lengthy and moderately expensive. Not to put too fine a point on it, you will need a lawyer to apply for a patent. There are international treaties such as the Paris Convention and the Patent Cooperation Treaty that offer some international cooperation, but individual countries tend to be prickly about their own patent systems. More information on the U.S. patent process as well as international protection is available from the U.S. Patent and Trademark Office (http://www.uspto.gov/). Consider carefully whether to pursue a patent. Although complicated and expensive to acquire, a patent is regarded as an extremely valuable business asset.
[edit] Trade Secret
Trade secret protection applies to code related to a game that is not easily viewable. This would include software tools, encoded file formats, and some parts of the software code itself. However due to the ease of reverse engineering software, copyright protection should also be employed in all of these cases.
There was a time when trade secret law provided the exclusive form of protection for software code. Although that is no longer the case, trade secret law is still an important tool for protecting your code. Unlike copyright and patent, there is no central registry for trade secret protection. Rather, trade secret status emerges from the way you treat the information or product you seek to protect. To borrow a phrase from Gandalf the Grey, "Keep it secret. Keep it safe." In litigation, a court will examine whether you made a serious effort to protect the trade secret from disclosure. In the US, trade secret protection is a matter of state law, so it varies a bit from state to state. In most states, however, trade secrets are protected both in tort and contract law. When putting together a beta test, for example, you will almost certainly want to include one or more provisions in the terms of use designed to establish the necessary secrecy and to build in the protection of contract law. Again, a lawyer is probably a wise investment here.
Software code can also be protected under unfair competition laws. Such laws run outside the scope of this brief essay, but their existence is worth noting.
