The Court of Justice of the European Union has ruled that selling ‘used’ e-books is impermissible. This raises the question of whether EU law should treat used computer games like e-books or like computer programs.
Previous case law
CJEU case law generally treats sales of used computer programs on physical media and in digital form alike. Resale is therefore lawful regardless of whether they were originally purchased in boxed or digital form, such as OEM operating systems. This line of authority broadly remains in force. EU law allows a licence, for example for an operating system, to be purchased from its original owner and the software installed on the buyer’s computer.
E-books may be sold only with the publisher’s consent
In its judgment of 19 December 2019 in Case C-263/18, the CJEU held that selling an electronic book constitutes communication to the public, rather than distribution. The initial sale of a copy of a work, in this case a digital book, therefore does not exhaust the copyright holder’s rights. The exhaustion principle, which allows copies to be freely traded subsequently, applies to physical books, but applying it to digital versions would jeopardise the licensor’s interests. Consequently, digital books could be resold only with the publishers’ consent.
Audiovisual works
Under EU law, audiovisual works, such as films, fall within Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. This means that audiovisual works cannot be freely resold in digital form on the secondary market. They are therefore subject to rules analogous to those for e-books, rather than computer programs.
Should games be treated as films?
At this point, we should consider the position of computer games. On the one hand, games appear to be a particular type of computer program. On the other, they incorporate graphics, music, audiovisual cutscenes and other elements that are very important to their audience and together form the game as a whole. In the e-book judgment mentioned above, the CJEU also stated that ‘if an electronic book were to be regarded as complex material comprising both a protected work and a computer program eligible for protection under Directive 2009/24, that program would have to be regarded as ancillary to the work contained in the book’. The CJEU also referred here to the Nintendo judgment in Case C-355/12.
Nintendo before the CJEU
As every video game enthusiast knows, Nintendo is a well-known Japanese corporation based in Kyoto that makes consoles and games. The Court of Justice considered questions referred for a preliminary ruling by a Milan court concerning proceedings brought by Nintendo against companies selling Wii and DS consoles with software enabling pirated games to be played on them. In that judgment, the CJEU held that video games such as those at issue in the main proceedings constitute complex material comprising not only a computer program, but also graphic and sound elements which, although encoded in a programming language, have creative value in their own right. Insofar as a video game’s graphic and sound elements contribute to the originality of the work, they are protected, together with the entire work, by copyright under the regime established by Directive 2001/29.
A program or something more?
This case law raises the question of whether computer games should be treated as computer programs, which objectively they are, or as audiovisual works. As the CJEU stated in Nintendo, the key appears to be whether the audiovisual elements are essential to the games. A game’s content is very important: it is conveyed to the player in audiovisual form, although stored as computer code.
Are all games created equal?
The Court’s reasoning above suggests that games should undergo a form of test to determine which of their elements predominates. This would identify the regime applicable to a particular game: whether it should be treated like a film or like a computer program.
The test
This hypothetical test would have to be applied to each game individually. It would certainly require breaking the game down into its constituent parts and separately examining every element that might qualify for protection in its own right. Courts would therefore have to consider the music and graphics, as well as the code itself and the features that make the game a computer program. They would then need to compare the elements protected under the general Directive 2001/29, taken together, with those constituting the computer program. If the game’s creative character, its very essence, how it is experienced and what makes it a work are determined mainly by audiovisual elements, it should receive the protection afforded to films rather than computer programs.
The importance of the audiovisual aspect
In practice, however, does not every game rely heavily on this audiovisual element? After all, every game, perhaps apart from text-based games, depends to a considerable extent on graphics, sound and narrative. Without them, the player could not experience it properly. It can therefore be said that the audiovisual element is essential to most games: it determines their originality.
The missing element: gameplay
Leaving all those elements aside, I believe the CJEU overlooks one component, perhaps the most important, of the overall video game experience. This is, of course, interactivity, which distinguishes games from films. Gameplay is itself a distinctive form of interactivity, not entirely comparable, for example, to that of application software, which is also inherently interactive, and inseparably linked to games’ entertainment function. In my view, it is the main distinguishing feature, or at least one of the main features, that gives games their independent character. This raises a question, however: should games’ interactivity be treated as part of their identity as computer programs, or as a feature placing games in an entirely new category? We might also ask whether gameplay actually distinguishes every game: what about so-called walking simulators or interactive films? Should interactive films therefore be treated as games? Do they also form a new category? Legal scholarship and further case law will undoubtedly need to develop a position on these issues.
Practical effects
Regardless of whether the CJEU develops consistent case law on video games in future, there is no doubt that they will effectively be treated like films rather than in the manner typical of computer programs. Digital redistribution of games will therefore not be permitted, at least without the publisher’s consent. There are several reasons for this. The way a game is used, and the purpose of using it, differ from those of application software. Completing a game is comparable to reading a book or watching a film, whereas an Office suite, for example, remains equally useful to its original user over time. Conversely, some games cannot be ‘completed’ and thus theoretically provide endless entertainment. That experience can be compared to listening to music. In any event, the entertainment aspect remains, which application programs lack. Secondly, the audiovisual aspect of games, or at least most games, appears to be the predominant element and the source of their originality. Thirdly, both judgments discussed in this article suggest that the CJEU favours this interpretation.
Digital distribution today
Games are currently distributed digitally through various platforms, including Steam, Epic Games Store, GOG, Microsoft Store and PlayStation Store. Codes redeemable on specific platforms, mainly Steam, can also be purchased from third-party shops, such as Humble Bundle Store, or included in boxed editions of PC games. Regardless of the platform, however, purchased games are linked to an account that must be created to use the platform and download and launch the game. Even GOG, which exceptionally does not require users to use its platform software to launch games and sells them without additional anti-piracy protection, still links licences to individual user accounts.
The secondary market
Precisely because all licences are linked to a user account, including those for boxed PC games, the secondary market for video games is essentially limited to physical console editions. At the start of the current console generation, Microsoft did attempt to impose restrictions on physical editions that would have made resale impossible, or at least difficult. Players reacted strongly, however, which also contributed to the Xbox One’s rather poor launch. Resales of console games therefore appear to be doing well. The position for PCs is different.
Trading in accounts
Although reselling PC games is effectively impossible, attempts to circumvent the restrictions are very common. This is done by selling accounts or access to accounts. The first method involves selling an entire account containing purchased games, a practice generally prohibited by platforms’ user agreements. The second involves making accounts available to other users for a small fee. Selling access to accounts is fairly common in Poland, and Allegro carries many offers of games for a token amount. A 24-year-old resident of Piekary Śląskie recently discovered how the law views this practice.
9,000 charges
The 24-year-old mentioned above was charged specifically with selling access to games on Steam. The alleged offences took place between 2014 and 2018. His activities resulted in approximately 9,000 charges relating to infringements of intellectual property rules. The losses were assessed at just under PLN 1 million, and the defendant faces up to five years’ imprisonment. Nevertheless, those offering such services on Allegro appear undeterred, and these offers remain easy to find.
Nothing will change
In summary, the CJEU’s new case law will make little practical difference to consumers. The Court is essentially restating rules that have long applied in practice: only boxed games can be resold, assuming that only console games can genuinely be regarded as physical editions.
Leaving those considerations aside, a more explicit CJEU ruling on games could conceivably give a new argument to those who maintain that games are an art form and should be treated accordingly. Ultimately, how society perceives games will shape the legal solutions adopted in the longer term. We may be witnessing a change in that perception.
