The Indian gaming industry, valued at $3.49 billion, has witnessed remarkable growth, drawing in start-ups and over 900 MSMEs. In the Indian context, the games have evolved from a simple game of dice, which is most fondly remembered in the tale of Mahabharata, to more nuanced skill and transparency-based features. To illustrate by example, some operators have come up with Patented processes to ensure trust and transparency.

Despite India’s burgeoning gaming market and the surge in developers, a key challenge lies in the perception battle, where skill-based real money games are often mistaken for gambling, hindering their protection. Legal differentiation hinges on skill’s impact on outcomes, affirmed by the Supreme Court in cases like State of Andhra Pradesh v K. Satyanarayana & Ors., State of Bombay v R.M.D. Chamarbaugwala and K.R. Lakshmanan v. State of Tamil Nadu. Such games are exempt from gambling laws (Public Gambling Act) and recognized as legitimate business activities under Article 19(1)(g) of the Indian Constitution.

The Indian jurisprudence is pretty well-established concerning games of skill vis-à-vis games of chance, whether played online or offline. However, this article is limited to the aspects of intellectual property concerning these games.

The present Indian landscape lacks direct intellectual property protections concerning electronic/video games, being complex compositions of various artistic and technical elements such as character designs, backgrounds, soundtracks, narratives, game codes, etc, which not only take years of development and planning, but humongous resources and capital to develop and distribute. It may be noted that the electronic/video games industry faces not only challenges in the realm of creating original narratives/content but also in the absence of codified/specific legislation encompassing the intricacies of the elements of the games, face a myriad of challenges such as game cloning and digital piracy, which lead to unauthorized distribution and replication/reverse engineering of popular games and infringement of their intellectual property. The skill-based games are centred around unique elements which call upon its users to exercise their mental skill, superior learning and adroitness, and these features require sweat and hard work of the author and creator.

In India, the absence of specific regulations for the gaming industry leaves video games uncategorized under intellectual property law. While trademark law can protect the name, characters’ unique identity, symbol etc. of the game, it still leaves a wide array of intellectual property elements unshielded. The software industry has tackled this challenge of infringement by replacing serial numbers and keys with login credentials, thereby, making the gaming software the service, however, with limited success, especially in the context of electronic/video games given the aspect of jail-breaking, side-loading, pirated version with ease, which in the view of the authors are currently protected in a very curtailed and limited manner in the copyright regime.

In Mattel Inc. and Ors. v. Jayant Agarwalla, the Delhi High Court set a high threshold for copyright infringement, requiring originality beyond mere arrangement or colour changes of tiles. Citing Eastern Book Company & Ors. v. D.B. Modak & Anr., the Court emphasized the need for judgment and ability in creative works. It discussed the merger concept, highlighting that protecting one expression of an idea could constrain freedom of expression if limited possibilities exist.

In conclusion, the ongoing development of copyright and intellectual property laws is crucial for sustaining the growth and innovation of electronic and video games. This can be best achieved through specialized legislation that integrates patents, copyrights, and trademarks in a tailored approach. This would address current needs, ensuring novelty, originality, and advancement, while also encouraging investment.