Standing on the Shoulders of Giant Nerds: IP in Games Stories

The computer gaming industry offers IP bloggers a writing paradise: a wealth of pun-filled headlines (State of Play, Games Up?, and Playing for Keeps, to name but a few) and a surprisingly modern approach to IP. Your Katonomist thought it was time to level up and look at IP in games content.

The cake is a pie?

The UK government's Department for Culture, Media and Sport (DCMS) puts the computer games sector (Digital & Entertainment Media) as about one-tenth the size (by gross value added GVA) of the Music & Visual and Performing Arts sector. Unlike much of the economy, the computer games sector is growing rapidly.  The big economic debate in recent years has been government policy on computer games tax breaks to attract and retain talent and businesses.  Computer games are a global business and tax breaks may be a zero sum game between countries. In a zero-sum game, one player's gain is another player's loss; that is, the tax breaks may not increase the size of the pie - just one country's share of the pie at the expense of others.

For IP, the key character in computer games content is cumulative innovation.  Cumulative innovation is innovation which “builds on prior developments and discoveries” (Scotchmer’s definition.)  Cumulative innovation is particularly challenging for economic policy as it is difficult to adequately reward a specific innovation.  As Scotchmer notes, there are three types of cumulative innovations: basic innovation, multiple research tools and quality ladders.  Basic innovations lead to multiple innovations (one to many) whereas multiple research tools may lead to a single innovation (many to one).  A quality ladder implies that each generation of an innovation is an improvement on the previous. 

How can policy adequate reward a single innovation if the value of the innovation is part of a subsequent innovation?  And vice-versa?  If policy over-rewards early innovations with strong protection, it may prevent later innovation.  If policy prefers subsequent innovations, it may reduce incentives for initial innovations.  Where are the lines drawn?

In computer games, much of the content is cumulative in that it is derivative of other media.  The various genres in computer games map to those of other media. At last week’s UK games annual extravaganza, Developin Brighton, game designer and writer Mary Hamilton argued that “Video games need to get better at stealing things from other genres.” She hits on a key point in computer games content – it is mostly derivative in that it builds on other media and that the industry is “standing on the shoulders of giant nerds.” (In the spirit of sharing, Mary lent her blog post title.) 


Two great examples of computer games building on other media are Bioshock as an interpretation of Ayn Rand's Atlas Shrugged and Far Cry 2 as Joseph Conrad's Heart of Darkness.  Games also copy other games both digitally, such as Bejewelled clones and in analogue forms, such as these Scrabble clones. Facebook games, the combination black sheep/overachiever of the computer games family, are rife with copying accusations. It is difficult to conclude where inspiration/derivation/cumulative innovation ends and copying/cloning begins.

If, as it is argued, there are only seven basic plots, then high levels of protection of an initial innovation (story) could be damage cumulative innovation.  Lawsuits over non-textual infringement such as the Da Vinci Code case and Willy the Wizard/Harry Potter lawsuit could be problematic for an industry which borrows so much from other genres.  These lawsuits have been unsuccessful, but the cost and strategic threat they pose may put a damper on cumulative innovation.

In addition to potential issues in the derivative content of games, the sector has the usual creative industries IP challenges in un-licensed downloading, infringement and contracts (for more on IP in games, check out Jas Purewal's Gamer/Lawblog). The sector is relatively young and it will be interesting to see if its derivative, free-sharing approach to content survives the maturation process.