From being computer programs based on repetitive patterns, to be nowadays the complex fully interactive digital platforms using artificial intelligence, with “worlds” and “scenarios” that in some instances take the gamer into a “parallel reality”, video games have evolved.
Obviously, software is the core of a video game. But there are other artistic, literary and distinctive elements having protection under IP rights, that should also be taken into account.
According to Mexican law, software is conceptualized as the original expression in any form, language or code, of a set of instructions that, with a certain sequence, structure and disposition, makes a computer or device performing a specific task or function.
In terms of the Federal Copyright Law (FCL), software is protected as if it were a literary work. This is based on the fact that the source code of a software, that is, the programming instructions, are represented in text formats and by comparing the text of a source code in view to another, it would be possible to establish a difference or a copy between them, so to determine the existence of a copyright violation, when significant parts of the source code forms part of another one.
In addition to the literary aspect of the source code, the FCL has an express provision establishing an extension of copyright protection over all visual and audible elements that can be appreciated through the software execution.
SCRIPT AND STORYBOARD
In terms of the glossary of the World Intellectual Property Organization (WIPO), literary works are all forms of original written works, whether literary, scientific, technical or merely practical, and regardless of their value and purpose.
The development of a video game is usually based on a script and a storyboard similar to the ones used to develop a movie or a play. They have copyright protection in their conception as a literary works and the resulting scenes and scenarios displayed by a video game, can be considered as an adaptation of the original literary material in which they were envisaged by the authors of the story.
MUSIC AND AUDIOVISUAL CONTENT
The soundtrack of a video game is also subject to copyright protection, since it involves the use of music expressly adapted for each situation displayed during the performance of the videogame.
The synchronization of audible materials with real or fictitious sequences of images conforms an audiovisual work. The FCL establishes that the following individuals have to be considered as authors of an audiovisual material: i) the director; 2) the creator of the script; 2) the music composer; 3) the cameraman; and, 4) the designer of the animated characters.
Pursuant to Mexican law, the authors have the moral rights to be recognized as the creators of the work, while the producer, the one that establishes the guidelines for the work development and who remunerate the authors owns the economic rights to enable it to use and communicate the work with commercial purposes.
Similar to an action movie, video games have different type of characters, going from the heroes or main protagonists, the villains and the secondary and incidental characters
Fictitious or animated characters have distinctive elements such as their names, their original visual representation and their “psychological characteristics”, which are the behavior and personality the character tends to perform. It is interesting to note that although the video gamer assumes the role of a character, its performance during the game is conditioned to the special characteristics given by its creator.
IP PROTECTION IN MEXICO
According with Mexican law, protection is granted by the fixation of a work into a material support and without establishing an additional formality to achieve this protection.
Obtaining a copyright registration for all copyrighted works is a highly recommendable action to strengthen the automatic protection established in the FCL. Copyright registration is available in Mexico through the National Copyright Institute.
Once a registration is obtained, the Certificate of Registration provided by the National Copyright Institute constitutes proof of the existence of the work and of the ownership of the copyright. Note, however, that a Copyright registration does not grant the protection of rights, as this registration always leaves possible rights of a third party alive as it is merely declarative. Regarding character protection available in Mexico, there is a special protective mechanism foreseen in the FCL, so-called Reservation of Rights for Exclusive Use. This protection provides to its titleholder, the right to use under an exclusive basis, the name and distinctive physical and psychological elements of a fictitious character.