AIPPI 2025: Protecting creativity in the US$200 billion global gaming arena

The video game industry is a global juggernaut. With over 3 billion users and an annual revenue exceeding US$200 billion, it has eclipsed movies and music combined. From high-end consoles and computers to ubiquitous mobile devices, gaming is more accessible and diverse than ever. This explosive growth, however, brings complex challenges, particularly in intellectual property rights.

During a panel session at the International Association for the Protection of Intellectual Property held at the PACIFIC Yokohama, the speakers discussed the sector’s boom. Key factors fueling this growth include low-cost smartphones, the rollout of 5G networks and the widespread adoption of digital payment methods such as Unified Payments Interface (UPI). The results are staggering:

The online gaming segment grew at a 28 percent compound annual growth rate (CAGR) from fiscal year 2020 to fiscal year 2023, hitting a valuation of US$2 billion.

· Projections estimate the market will reach US$4.5 billion by fiscal year 2025-26.
· The industry could create up to 250,000 jobs by the end of fiscal year 2025-26.
· This rapid expansion is further supercharged by the rise of generative AI, which promises to revolutionize game development by bringing games to market faster and at a lower cost, enabling smaller teams to create bigger and better experiences, and introducing entirely new game mechanics and genres.

The IP behind the pixels

A video game isn’t a single product – it’s a complex bundle of different intellectual properties, each with its own form of protection. Understanding these is crucial to grasping the industry’s legal challenges.

· Copyright is the most common form of protection. It covers the game’s source code (as a literary work), its visual elements (characters, scenery and user interface), its sound (music and effects) and the script for cut scenes.
· Patents can protect novel inventions. In gaming, this could apply to unique hardware like a game console or a controller, or even specific, inventive game mechanics and software processes.
· Trademarks protect the branding that distinguishes one game from another. This includes the game’s title, logos and even the names of iconic characters.
· The combination of these elements creates the unique experience known as the gameplay – and this is where the lines of IP protection begin to blur.

The challenge of game cloning

One of the most significant IP challenges in the modern gaming landscape, especially in the fast-moving mobile market, is game cloning.

A game clone isn't a direct pirate copy. Instead, it meticulously replicates the core combination of game mechanics, rules and flow of an original game without directly copying the art, music, code or character names. The result is a game that looks and sounds different but plays identically to the original.

Cloners operate in a legal grey area. They argue that they are only borrowing the “idea” of a game, which is not protectable under copyright law, rather than its specific “expression” (the art, code, etc.). For example, the idea of a “match-three puzzle game” is free for anyone to use, but the specific expression found in Candy Crush Saga – its unique candies, sounds and level design – is protected.

The core legal question: At what point does the specific combination and arrangement of game mechanics cease to be a mere idea and become a protectable form of expression? In legal systems like the United Kingdom’s, where copyright protection requires a work to fit neatly into a pre-defined category (literary, dramatic or artistic work), this can be particularly difficult to argue.

To safeguard innovation, a new perspective is needed. The industry and legal frameworks should recognize an original game’s unique combination of mechanics as a protectable entity. Copying the core gameplay mechanics should be treated as copying the essential expression of the game, providing creators with the legal tools to defend the very heart of their creations from imitation.