ARTIFICIAL INTELLIGENCE AS A VIDEO GAME DEVELOPER IN INDIA BY - SOMYA MISHR
AUTHORED BY
- SOMYA MISHRA, Research Scholar
Abstract:
With the advent of
technology, people have come a long way from video gaming to online gaming or
mobile gaming. As much as we have enjoyed video games as a great source of
entertainment, the game developers have been restlessly creating more games for
us. Apart from just noting the vibrancy of the gaming world, it is also
necessary to identify the legal issues with respect to the video games and their
developers. Most importantly, the recent advancements of technology have
brought in the effectiveness of Artificial Intelligence in the world of gaming.
The lack of protection for Artificial Intelligence is apparent with respect to
the Indian legislation. Although the beginning of identity of Artificial
Intelligence as DEEP BLUE holds a game as a foundation, it is surprising that
the laws have not been improvised accordingly. This stagnant state of the laws
has affected a loss in creativity and several game clones are created. A clear
example of a game clone is Candy Crush. Amidst the popularity of Candy Crush,
the original slide-and-match puzzle game is lost which was Bejeweled. Apart
from this, there are several other games which have been cloned over a period
of time. At the same time, there also exist a plethora of video games which
have been creatively enhanced with the help of artificial intelligence.
This paper aims to
reflect on the intellectual property laws and examine the extent up to which legal
protection can be given to Artificial Intelligence in the field of game development.
It is also pertinent to figure out that if Artificial Intelligence gets
recognised as the secondary creator in this digital
Keywords: AI, video
game, copyright, developer, technology
Identity Of Video Games As An Entity
If we observe the
advanced use of technology with the changing lifestyle generation after
generation, it will be very evident that the video game development companies
have been constantly creating developed versions of their works to bring them
at par with the rising innovations in technology. The use of the word ‘evident’
is made on purpose so as to point at the increasing access to games on every
kind of electronic device made available to us. The growth and ascendance of
video games as an art form is also blatantly evident by the number of hours players
dedicate to games. This amount of dedication even surpasses the relevance of
formerly dominant media like books, music, and television.[1]
Although video games have always been a source of entertainment, from the
perspective of a developer or the creator, a video game is a matter of giving a
pictorial representation to the ideas in a virtual platform. Video games are
essentially pictorial representation of ideas of human adventures or fantasies.
The one way in which a
layman can describe a video game would be as a series of moving images with
music or sound effects running in the background. The images and graphics form
the significant part of attraction of a video game and it is also the basic
feature of game development. Whenever we play a game on any device, the moving
images take the game forward and with respect to the music, there is an option
to either play it or not. Even if there is an option available to the player,
the developer makes it a point that an audio work is created so that this
option is made available to the player. Considering the fact that sound and
image form a significant part of every game, the developer mandatorily focuses
on these features while developing a game. Irrespective of the presence of
sound, the movement of images is constantly there in every game and this is the
integral part of the continuation of a game. With
respect to the same, it is essential to lay focus on few definitions of
audiovisual works in order to understand the scope of video games being covered
under the umbrella of audiovisual works.
Article L112-6 of The
French Copyright Act defines audiovisual works as:
“works consisting of sequences of moving images, with or
without sound”.
In § 101 of the U. S.
Copyright Act of 1976, audiovisual work has been defined as:
“works that consist of a series of related images which are
intrinsically intended to be shown by the use of machines, or devices such as
projectors, viewers, or electronic equipment, together with accompanying
sounds, if any, regardless of the nature of the material objects, such as films
or tapes, in which the works are embodied.”[2]
The Beijing Treaty on
Audiovisual Performances provides a definition for the term
“audiovisual fixation” as:
“the embodiment of moving images, whether or not accompanied
by sounds or by the representations thereof, from which they can be perceived,
reproduced or communicated through a device”.[3]
In the month of April,
2020, the Beijing Treaty on Audiovisual Performances came up as an instrument of
international nature which expressly talked about protection upon the works of
performing artists for having the work fixed on any audiovisual medium. The eventual
intention behind the Treaty was to incorporate a sense of recognition of the
right of the artists to be able to decide the time and manner in which their
works are utilized abroad. It also intended to help them in receiving a portion
of the total profits gained from such a use, even in the environment of the
digital world.[4] In
contrast to this, the term ‘audiovisual work’ has not been defined in any
Indian legislation even if the synonymous elements like artistic works,
cinematograph films, musical work and sound recordings have their individual definitions.
Considering the fact that
India is a non-signatory to the Beijing Treaty on Audiovisual Performances, the
concept of video games is still hazy to understand it as an independent
audio-visual product.
Missing Identity of Video Games
Although it is inferred
from the above-mentioned segment that a video game can be considered as an
audio-visual work, this identity for a video game as an individual entity is
missing in the legal framework. The development of video games has grown rapidly
in the past few decades when there has been a swarm of mobile games and online
games in the market as a major source of entertainment. Although the several
elements of a video game are identified independently, the conglomerate of all
these components requires a certain recognition as a sole entity. When a video
game developer creates a video game, he encompasses the musical work along with
the artistic and the literary work in order to create a complete work.
When we look at a movie
as an independent work, the entire movie gets protected as a cinematographic
work. Section 2 (f) of the Copyright Act, 1957 of India provides a definition for
cinematographic film as:
“any work of visual recording inclusive of a sound recording
which accompanies the visual recording and “cinematograph” is construed to mean
any work produced by any process/method analogous to cinematography including
video films.”
On a plain reading of the
above definition of cinematographic film, it is evident that this definition
categorically covers only those works which are recorded. The definition also
covers those works which are created in a process similar that of video films.
On the other hand, a video game undergoes three stages in its lifecycle. The
first stage is the one where it is created or developed. This is the stage of
birth of the video game and this is the point of inception. The second stage is
the actual gameplay and this is where the interaction takes place between the
player and the game. The second stage is the stage where the maximum use of a
video game is made with respect to recreation. Subsequently, the third stage or
the final stage is where the gameplay is live streamed or recorded and then
streamed through a video streaming portal like Twitch or YouTube.
On incorporating the
definition of cinematographic film into the idea of video games, the third or
the final stage of the video game life cycle seems to be secured. When
cinematographic film is defined, the word ‘recorded’ signifies that only those
works are covered under this definition which is a visual recording. At the
third stage of a video game, the streaming of the gameplay becomes a recording
which gets uploaded onto the portal and also gets saved for viewing in the
future.
Artificial Intelligence as a Video Game Developer
When we get into a
general conversation about Artificial Intelligence, the origin and the birth of
Artificial Intelligence becomes a mandatory part of the discussion. On these
lines, the success of DEEP BLUE shatters the thoughts on concealed capacities
of Artificial Intelligence. DEEP BLUE came out as a ground breaking algorithm
invention which was an expert in the game of chess and won a round of chess
against the then famous world chess champion, Gary Kasparov. Although the term
‘Artificial Intelligence’ was coined at a subsequent stage, these algorithms
marked the beginning of Artificial Intelligence. With these algorithms giving
an artificial power to the machines, several functions of these machines came to
stand at par with human capabilities and these were majorly tested through
games.
While discussing about
the role of Artificial Intelligence in the field of game development, Aleksandar
Filipovic defined Artificial Intelligence in video games as “a set of
software techniques used in a game engine to simulate intelligence in the
actions of computer-controlled characters reflecting one of the essential
characteristics of intelligence, which is "perceiving relevant
relationships in a specific situation”[5] the
definition portrays the game characters as computer-controlled characters and
also states that Artificial Intelligence adds simulation to these characters.
Simulation is where the real-world behaviour or process is predicted and
accordingly adapted by a computer programme.[6]
When this is read along
with the role of Artificial Intelligence in video game development, it is
depicted that the involvement of Artificial provides a certain degree of
advancement to the video games by adding simulation. This simulation further grants
a sense of independent activity to the game character by gradually liberating
them from being completely computer-controlled. This is how the enhancement of
video games is done through the incorporation of AI in video game development. Although
this efeectiveness of AI and advanced technology is recognised from a layman’s
view, the recognition of the same through the lens of law is yet to be analysed.
Legal Framework For Video Games And AI In India
The growth and
advancement of technology has been way faster than the growth in legislation.
As on date, we have arrived at a technological phase where an entire complete
world is possible to exist virtually and we have our laws as they were before
the virtual worlds existed. In this kind of a situation, it automatically makes
the developed technologies to mould their behaviour so as to forcefully squeeze
themselves into the old small bottle of existing laws. With respect to video
games, there are no laws in India focusing solely on video games as an entity.
The entire creation of a video game gets covered under the intellectual
property laws and most specifically copyright laws.
When the concept of video
game begun, it started off as a form of entertainment and even today, that is
how most people identify video games. Video Games can be classified as either
Casual Gaming or Gambling.[7] However,
if we look at the existing laws making reference to video games, it becomes
very evident that the focus has always been laid upon gambling only and the
section of casual games gets neglected considering it to be solely a form of
entertainment. In the case of State of Bombay v. R.M.D. Chamarbaugwala[8] which laid
recognition on a game as the subject matter of the case. However, it all trickled
down to just one aspect of video games as the reference in this case was made
from the standpoint of understanding ‘gambling’ activities. The entire meaning of
a game was limited to gambling and the casual gaming was not referred to in
this case.
When we lay eyes upon Section
3 of the Patents Act, 1970 and look closely at the exclusions, it is clear that this provision considers
a mathematical formula or any business method or a computer programme per se or
any algorithm as an exclusion from patentability[9].
Even if the elimination of computer programme from patentability is made apparent
in this provision, at the same time, there is still a gap left for further
interpretation. With this gap some room for a possibility of including of video
games can be seen because of the use of the phrase “per se”. There is no
statutory definition of the term “per se” in any Indian legislation. Nevertheless,
the general dictionary meaning of “per se” reads as “by itself” or “in itself”.[10] Keeping
this thought intact in mind, it is also necessary to note that The Copyright
Act, 1957 defines a “computer programme”[11] as:
“Set of
instructions expressed in words, codes, schemes or in any other form, including
a machine-readable medium, capable of causing a computer to perform a
particular task or achieve a particular result;”
If the aforementioned
dictionary meaning of “per se” is utilised to understand the provision of
exclusion of computer programmes inscribed in Section 3(k) of the Patents Act,
1970, then a possibility to leave some
space for inclusion of video games appears. A computer programme may not be a
patentable subject matter “per se” (in itself), but when a computer programme
is combined with a complementary audio-visual work along with a storyline, it
brings out the transformation into an entirely different form of product. This
product is the video game which can be identified as an individual entity and
not just an extension of computer programme. This possibility, if transformed
into an actuality, will result in the identification of video games in the eyes
of law and regulate them accordingly.
In addition to patents,
the possibility of protection also appears in the copyright. Section 14 of the
Indian Copyright Act indicates that copyright protection is made available to
computer programme for the purposes of translation, reproduction, adaptation,
performance and circulation. This depicts the importance granted to computer
programmes as a creation. Even if it is adapted into a video game, the
protection extends just to the programme and the act of adaptation, but it
completely ignores the video game as a distinct entity altogether.
Recognising AI As A Creator
Even if we keep that
aside, it is pertinent to think about Artificial Intelligence as a creator and
what identity do they have as creators. Section 2(d) of the Indian Copyright
Act defines an “author” with respect to specific genre of work. While, with
reference to every other genre, the term used to describe an author is composer
or author or artist, etc., with respect to photography and computer-generated
works, the word “person” is used. When it is made specific that it has to be a
person to receive protection for a computer-generated work, the identity of
Artificial Intelligence gets blurred.
On putting this
interpretation into applicability, only the creator of the AI algorithm will
get protection as the author because it is this programmer who created the AI
and then the AI subsequently developed the video game. Today, we are at the
stage where we have access to Generative Pre-Trained Transformer (GPT) through
our mobile phones. GPT is a form of Generative AI which uses the first job to
generate its own way of functioning in similar situations in the future. This
implies the capability of the Generative AI to use its own way of thinking and
acting accordingly and is known as Deep Understanding[12]. Keeping
this in mind, it becomes a little unfair to merely protect the creator of the
AI and not the AI itself for any further act of creativity.
The base idea behind
securing the rights of the original creator only and not the AI is agency. From
a common point of view, the original creator designs the AI and incorporates a
command. Whatever the AI further creates, is considered to be done as a result
of the command only. Hence, it is presumed that the AI has acted as an agent of
the programmer. This has also been noted in several discussions that the works
that have been created by AI are not copyrightable as a human authorship has
been made a mandate in the copyright laws in several countries.[13]
This substantiates the fact that the development of laws and the development of
technology has not been at par.
Another significant issue
with respect to works created by AI is its legitimacy. Valve Corporation is an
American video game development company. Valve owns a website named as steampowered.com
which is commonly referred to as Steam. This website is well known among video
game players for distribution of video games and it is huge platform for video
game developers to publish their games. On the 10th of January,
2024, Valve published new rules for those who intended to have their video
games published on Steam. As per these rules, the video game publishers will “need
to say if their game has AI content that is generated “live” while it is
running. It’s in the latter case when developers will need to detail the safety
measures, they put in place to stop their AI from generating illegal content.” This
hints towards the possibility that AI generated game content may also turn out
to be illegal in nature. This becomes another reason for not identifying.
Conclusion: Decoding The Relevance Of AI Today
Although we do have a set
of laws for securing the creativity of computer programmes and the pictorial
representations, these laws are rigid and do not flex enough to give way to new
advancements in technology. From a time when video games were merely a source
of entertainment for kids, we have reached at a time where video games have
become an integral part of our lives as a major stressbuster and even a profession
for some. Hence, it is necessary to make the laws flexible enough to protect
video games as an entity just as movies. when we talk about video games being
an entity, it is also necessary to have a designated identity assigned to AI
for being a game developer. Although the AI is itself a product of human
creation, there needs to be some authentication attached to AI created content.
We have reached the stage of Generative AI where the AI is capable of critical
thinking based on past experiences and it is not something that can be termed
as entirely a human creation. When a certain improvisation is done by AI
itself, it needs to be recognised and protected as well. With respect to the
same, a lot is required to be done on the part of the legislature to secure AI
generated works specifically with regards to video game development.
[1] S.
Gregory Boyd, Brian Pyne, et.al., Video Game Law Everything You Need to Know
About Legal and Business Issues in the Game Industry, (Taylor
& Francis, 2019)
[2]§ 101, 17 U.S. Code
[4]Sara Tortosa, The Beijing Treaty: A
step forward in the protection of related rights in audiovisual performances, Kluwer Copyright Blog (Jun. 18, 2021)
https://copyrightblog.kluweriplaw.com/2021/06/18/the-beijing-treaty-a-step-forward-in-the-protection-of-related-rights-in-audiovisual-performances/
[5] Aleksandar Filipovic, The Role
of Artificial Intelligence in Video Game Development, 20 Kultura Polisa 50 (2023)
[6] Margaret Rouse, Computer
Simulation, Techopedia (Feb.
5, 2019) https://www.techopedia.com/definition/17060/computer-simulation
[7]
Aaroha Kulkarni, Victims of Virtual Vortex: Regulating the Video Game
Industry in India, 7 CMET 18 (2020)
[10]Guidelines for Examination of Computer
Related Inventions(CRIs), Office of the Controller General of
Patents, Designs and Trademarks, Rule 3.12 (2017)
[12] Jiran Kurian, Rohini V, A
Deliberation on the Stages of Artificial Intelligence, SCRS Conference
Proceedings on Intelligent Systems (2021)
[13] Rita Matulionyte & Jyh-An Lee,
Copyright in AI-generated Works: Lessons from Recent
Developments
in Patent Law, 19
SCRIPTed 5 (2022)