F. Willem Grosheide, Herwin Roerdink
and Karianne Thomas*
Abstract: Video games are fast becoming one of the most popular media of choice.
The global market for video games is still expected to grow s ubstantially in the upco ming
years. The legal framework for protection of video games becomes more and more
significant. This paper addresses a number of the intellectual property law aspects of the
protection of digital video games in light of the gover ning EU regulation and case law. It
discusses not only copyright protection of computer programs (software), databases and
audiovisual or cinematographic) works, but also patents o n novel aspects of a video game
product as well as trademark pro tection. The pa per concludes with so me ob servations on
the enforcement of intellectual property rights in the EU.
A video game is usually defined as an electronic or computerized game played by manipulating images
on a video display or television screen.
It is understood, tha t this kind of gaming can be done bo th off
line and online. As a co nsequence of the referred to broad definition of a video game, within its reach fall
both games, such as chess or scrabble, which were developed for and can be played in the real world as
well as the digital world (off line as well as on l ine), and games, such as Pacman or Call of Duty, which
are developed for and can be played only in a digital environment.
Since the first category of video games, as seen from an int ellectual property law perspective, has no
inherently specific characteristics, whereas the second category of video games has many of them, in this
contribution the focus will be on that last category.
Within that focus the attention will be addressed
mainly to the intellectual property aspects of the developing and the playing of digital video games, i.e.
copyright law, patent law, trademark law or a combinati on thereof. All this is done in light of the
governing EU regulation and case law.
It follows that outside the picture falls a wide variety of other issues related to video games. To
mention o nly some: developing video games by autonomous intelligent systems, preservation of video
games in view of future uses, infringement o f one or more intellectual property rights involved in a video
game, insuring video games against intellectual property risks, pote ntial harm related to a ddiction,
aggression or lowered sc hool performance of the youth, promotional games of chance, virtual money and
online gambling, liability issues for instance with respect to video games used for business purposes such
∗ F. Willem Grosheide is emeritus professor of in tellectual property law at Utrecht University and counsel at the Van
Doorne law firm in Amsterdam; Herwin Roerdink and Karianne Thomas are both IP lawyers at the Van Doorne law
European Commission, Study on the Economy of Culture in Europe, October 2006
Taking account of the fact, that, in p ractice, the terms electronic game and digital game are used interchangeable, in
this contribution the term digital game will be the standard term, regardless of whether the gaming is done off line or
on line. The term computerized game will be used in t hose instances that a video game is played by means of a
computer. Video games are part of the lager category of digital media, meaning any type of sound and/or visual
media that is in a digital format for the convenience and entertainment of consu mers. See for an account of the terms
virtual world or virtual space as distin guished from or opposed to the terms actual or real world and actual space or
real space Lesley Gallagher, The Cultural Geographies of Videogames,
www.lesleygallacher.com/Videogames.pdf, arguing that virtual worlds are themselves real worlds which are brought
into being through material practices and technologies (video games as cultural geographies).
With regard to the first category of video games intellectual property law comes into play in relation to the
digitalization of such a game, i.e. in relation to its driving software or supporting carrier, but not in relation to the