The video game industry has changed since the release of the arcade game Pong in 1972. The law has always had difficulty grasping video games.
Today, case law identifies a video game, made up of several elements, as a “complex work”. This notion is vague and raises questions about its consequences.
Case law developments
In France, the Intellectual Property Code provides a non-exhaustive list of intellectual works that can be protected by author’s right, including software, without mentioning video games.
However, a video game can be protected by author’s right if it is original.
Caselaw has long questioned the nature of the intellectual property rights that exist in a video game. On top of a software base, a video game is made up of several elements, including graphics, music and the script.
Initially, the caselaw seemed to consider that, despite these elements, it was comparable to software[1], given the importance of this component[2]. It then went on to distinguish between the various components of a video game, each of which is protected by a specific right.[3]
The complex work, a case law creation
The Nintendo[4] ruling by the CJEU then attempted to clarify the situation. It held that video games are “complex matter comprising not only a computer program but also graphic and sound elements” that must be protected by a single author’s right. They therefore fall within the scope of Directive 2001/29/EC (“Copyright Directive”), and not Directive 2009/24/EC (“Software Directive”).
The CJEU’s decision is based on the concept of “complex matter“, which has no legal definition as such. French case law seems to have adopted the European approach, preferring the concept of “complex work“.
A recent decision concludes that “the Court of Appeal accurately stated that a video game is not a computer program in its own right but a complex work in that it includes software components as well as numerous other elements such as graphics, music, sound elements, a scenario and characters“.[5]
The courts consider that this concept is justified by the elements grouped together within the same whole, without however giving a precise definition or explaining how this complex work functions. A number of questions remain unanswered, in particular regarding the assessment of the originality or infringement of such a work.
Interestingly, this concept is not used for other works that combine several elements and could also be described as complex works.
Difficult application and practical consequences
The courts[6] sometimes seem to have difficulty in applying this concept of a complex work.
Recently, a decision by the Paris Court of Appeal hesitated over the qualification to be given to a piece of software taken alongside its graphic interface, which could have been classified as a complex work. It drew a distinction between a claim for author’s right infringement on the software itself, and on its graphical interface, taking the view that these are two different objects.[7]
This choice of regime may have consequences for the exhaustion of rights. Downloading a digital copy of a protected work, unlike software, does not result in exhaustion.
The French Supreme Court has recognised that a contractual clause prohibiting the redistribution of video games purchased on the Steam platform is not unlawful, and has ruled[8] that “the rule of exhaustion of rights does not apply in this case“. It allows the rights holder to continue to exercise its author’s rights over these games. The solution would have been different if the video game had been considered as mere software.
Care should therefore be taken when drafting general terms and conditions of sale and when bringing infringement actions.
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[1] French Supreme Court. Crim. Div. 23-11-1999 – n° 98-81.719
[2] French Supreme Court. Crim. Div., 21-06-2000 – no. 99-85.154
[3] French Supreme Court. Civ. Div., 25-06-2009, n° 07-20.387
[4] CJEU, 23-01-2014, Nintendo, C-355/12
[5] French Supreme Court. Civ. Div, 23-10-2024 – n° 23-13.738
[6] Eg : Paris First Instance Court, 7-11-2024, RG n° 24/02849
[7] Paris CoA, 6-12-2024 – n° 23/09486
[8] French Supreme Court. Civ. Div. 23-10-2024 – n° 23-13.738