Copyright protection of game ideas and concepts

Game ideas and concepts cannot as such or in their abstract method be protected by copyright; however, in so far as they are given concrete form in a specific work, they may be accessible to copyright protection. The Higher Regional Court (OLG) of Cologne had to decide, following a remittal by the Federal Court of Justice (BGH), under what conditions this applies in the individual case.

In the case of an injunction claim by the developer and publisher of an educational game system, composed of various exercise booklets and control devices for checking the correctness of answers, the Higher Regional Court initially refused in principle to recognise the idea as capable of protection. In its judgment of 01.06.2011 − I ZR 140/09, however, the Federal Court of Justice (BGH) had pointed to a potential capability of the game system for protection as a scientific work and remitted the matter for renewed decision on the existence of the conditions for protection and on an infringement by the defendant.

Court decision

The OLG Cologne (Judgment of 13 July 2012 – 6 U 225/08) affirmed both the capability of the work for protection and an infringement of the copyright of the game developer. In its appellate judgment, it pointed out that for scientific works, the creative achievement must lie in the presentation itself, and therefore no excessive degree of distinctiveness could be required; rather, it would suffice if individual intellectual activity distinct from everyday work were manifested. However, neither the intellectual content nor the abstract game idea or concept divorced from the work itself were capable of protection. However, in so far as a game could be designed individually in content in its phases, the idea itself, in its concrete form, would also partake of copyright protection.

This was the case here. The abstract game idea was, in view of the form of the individual elements, their arrangement and individual design, capable of establishing individual form-giving within the meaning of § 2 Abs. 2 UrhG. It was the concrete embodiment of the depicted game idea, within which there was a not inconsiderable scope for individual, original presentations.

The claimant had thereby demonstrated by reference to other educational games in its product range that for the abstract game concept of visualising the correctness of answers to certain quiz questions by means of a graphic representation on a physical object, differently shaped objects were also suitable.

At least on the basis of the selection, arrangement and visual design of the control discs, or in the case of another disputed control device, the switch and frame design used, the games of the claimant also involved considerable individuality and intellectual effort. In view of this, individual design of the associated exercise booklets was not mandatory, but was also present here.

These copyrights had been infringed by the defendant in that, in the design of its games, it had not maintained sufficient distance from the games of the claimant which were distinctive to a particular degree and therefore enjoyed comparatively greater protection, but had instead borrowed the distinctive design elements from the claimant's game.

Conclusion

With the decision of the Federal Court of Justice (BGH) in the matter of "Educational Games" and the subsequent decision of the Higher Regional Court (OLG) Cologne, the question of under what conditions game ideas and concepts may be protected by copyright has been given important clarification. In particular, it is now established that the game idea itself may also partake of copyright protection if it is sufficiently concrete and distinctive in design.

Important insights are also to be gained here for the hitherto restrictively handled protection in German case law of formats for TV broadcasts, shows and series, concepts for transmedia and crossmedia projects and computer games, for the purpose of design advice with the aim of achieving the widest possible capability for protection in the interplay of abstract idea and concrete form.