[Guest Post] [Conference Report] Intellectual Property in the Gaming Industry (JDPI)
Jocelyn Bosse
[Guest Post] [Conference Report] Intellectual Property in the Gaming Industry (JDPI)
Jocelyn Bosse Wednesday, March 18, 2026 - computer games, conference report, gaming
The IPKat has received and is pleased to host this guest report on the annual IP conference, Journée de droit de la propriété intellectuelle (JDPI), which focused on the video game industry this year. The report is provided by Marion Consoli (PhD Candidate at the University of Geneva) et Léonard Diambrini Palazzi (Trainee Lawyer at MLL Legal).
Here’s what Marion and Léonard write:
"On February 12, 2026, the Faculty of Law of the University of Geneva (UNIGE) hosted its annual IP conference “Journée de droit de la propriété intellectuelle (JDPI)”. This year’s edition focused on the complex issue of intellectual property in the video game industry. The speakers examined the current legal protection of video games and highlighted the emerging challenges faced by the industry, offering an overview of significant decisions rendered in the European Union and in the United States. The discussions further addressed initiatives undertaken within the World Intellectual Property Organization (WIPO) and explored the application of Alternative Dispute Resolution (ADR) mechanisms to gaming-related disputes.
Photo by Вадим Приходько via Pexels
The conference opened with welcoming remarks by the organizers, Jacques de Werra, Professor at the Faculty of Law of the University of Geneva, and Irene Calboli, Academic Fellow at the University of Geneva, Regents Professor of Law at Texas A&M University School of Law, both co-presidents of the Intellectual Property Special Interest Group at the European Law Institute (ELI). The event featured two presentations in the morning and two in the afternoon, each followed by comments from experts working in the industry.
Categorizing Video Games
Rafael F. Vazquez, Legal Officer in WIPO’s Copyright Law Division, started by addressing a recurring challenge for practitioners: the legal qualification of video games. He explained that video games resist a clear categorization either as software or audiovisual works or as a combination of both. He considered the uncertainty on the legal status ill-suited considering the large-scale and high-budget multidisciplinary productions. Rather than treating these components individually, he emphasized the need to approach video games as complex work that combined several elements of equal importance, often involving multiple authors. Consequently, he noted that different answers regarding the legal status could affect the identification of rightsholders, the allocation of contractual rights and, ultimately, the shaping of enforcement strategies.
He then sketched a comparative overview of three jurisdictions. In the European Union (EU), he examined how protection tends to be achieved by aggregating protectable elements into a cohesive whole. In the United States, he further observed that courts often reason in layers, paying particular attention to cases where the overall audiovisual expression is repeated. And, in the United Kingdoms, he observed that the protection is similarly layered but constrained by statutory taxonomy.
As a final point, he focused on the esports industry. He explained that, unlike traditional sports, esports depend on a title owned by a publisher, placing licensing and use governance at the center of business models and requiring a multi-stakeholder coordination (i.e contracts or licenses) between publishers, tournament organizers, players, platforms and sponsors. He also referenced the European Parliament resolution of November 10, 2022 on Esports and Video games (2022/2027 (INI)), which underlines the intricate relationship between esports, video games and traditional sports, and the soon to be released WIPO guideline initiatives (WIPO and Video Games Europe guide on Esports as well as the publication on the legal status of video game).
The US Perspective
Stacey Chuvaieva, Attorney at Mitchell Silberberg & Knupp LLP in New York, examined key legal challenges in the video game industry through leading U.S cases, beginning with the Upper Deck Co. v. Ryan Miller, a recent decision on substantial similarity. Although not a video game case, the court held that standard game mechanics are unprotectable “expression”, a finding that affects casual mobile games, where publishers frequently reuse similar game mechanics. However, she explained that even relatively simple user interfaces may be protectable by copyright based on claims of substantial similarity in the selection of arrangements to establish infringement (Sony Entertainment LLC v. Tencent Holdings Ltd; Metcalf v. Bochco; Skidmore v. Led Zeppelin). She further observed that this approach makes actions against mobile game clones particularly complex, as minor design changes may suffice to avoid a finding of infringement (Homa Games Sas v. Century Games PTE; Homa Games v. IEC Games).
She then turned to the issue of private servers hosting modified games (Blizzard Entertainment, Inc v. Turtle Wow), analyzing the limits of copyright claims as the source code is not permanently altered, and the potential claims available in such cases including Section 1201 of the Digital Millennium Copyright Act (DMCA), prohibiting e.g., the circumvention of technological protection measures (TPMs), and contractual claims for breach of the license agreement. She further developed this point by examining the subtle distinction drawn by U.S. courts between breaches of contractual conditions and covenants, and the significance of that distinction for copyright claims (MDY Indus., LLC v. Blizzard ENT., Inc; Take-Two Interactive Software, Inc. v. Playerauctions, Inc.).
As a final point, she discussed copyright infringement actions arising from the unauthorized use and distribution of copyrighted music within a video game platform (Robinson v. Binello) and the growing challenges posed by AI-generated content, in light of recent U.S. Copyright Office reports and key decisions addressing the fair use doctrine as applied to AI-generated works (Kadrey v. Meta Platforms, Inc.; Bartz v. Anthropic PBC).
In her comments to these presentations, Ewelina Jarosz-Zgoda, VP of Legal & General Counsel, CD Projekt RED, noted that although video games are generally treated as a single work, license agreements increasingly address specific components, such as music or characters. She then questioned the potential operator’s liability on using third-party IP to train LLMs underlying generative AI (this issue being currently discussed before the CJEU). Leonid Shmatenko, Counsel, 5Gambit Dispute Ltd, founder of Esports Legal News, further questioned whether reverse engineering of the source code could be considered as a violation of copyright and outlined the need to clarify the esport competition rules to ensure clarity and accessibility.
The EU Perspective
Gaylor Rabu and Philippe Mouron, Professors at Aix-Marseille University (amU) and co-directors of the Centre de droit du jeu vidéo (CDJV), started by explaining the hybrid protection of video games under EU law, governed by the Directive 2001/29/EC on the harmonization of copyright and related rights (InfoSoc) and the Directive 2009/24/EC on computer programs. They pointed out that while the former reflects a strong author-protective approach, the latter follows a more utilitarian rationale. They also noted that although the CJEU initially applied a dual framework, reviewing software elements under the computer programs Directive and non-software elements under the InfoSoc Directive, in Nintendo Co Ltd v PC Box Srl the Court favored the application of the InfoSoc Directive alone to video games, with important consequences on exhaustion and resale rights.
While this reliance on general copyright law appears favorable to game creators, French practice reveals the growing dominance of the collective work regime in the video games industry (Rennes Court of Appeal of May 7, 2024), that was originally conceived as an exception under the 1957 Copyright Act, attributing authorship to the person that initiated and financed the work. While acknowledging the practical benefits of this regime, given the highly complex nature of video game development, they emphasized that it may nevertheless weaken individual authors’ rights.
They concluded by addressing potential future legal challenges arising from the increasing use of AI into video game creation, capable of generating assets, narratives, or entire games, thus raising complex issues of authorship, originality, remuneration, and broader governance concerns, particularly in distribution and e-sport competitions.
Alternative Dispute Resolution
Oscar Suarez, Legal Officer at WIPO’s Arbitration and Mediation Center, promoted the use of alternative dispute resolution (ADR) as a practical tool to unlock the value of IP in the gaming and esports industries. He explained that WIPO, as a neutral United Nation specialized agency based in Geneva, offers three ADR mechanisms: mediation, arbitration and expert determination (see: WIPO ADR Rules).
He outlined several recurring reasons why ADR is particularly attractive. First, it provides a cost-sensitive avenue, especially relevant for creators and small and medium-sized enterprises (SMEs). Second, it offers a useful one-stop forum solution as IP rights are territorial, and disputes frequently trigger parallel proceedings across multiple jurisdictions, creating a risk of fragmented outcomes. Third, ADR is better suited to accommodate the technical and specialized nature of the video game industry disputes through the intervention of experts. Finally, the confidentiality typically associated with ADR is particularly valuable in gaming disputes where trade secrets and sensitive commercial information often play a central role.
He then turned to WIPO’s initiatives for video games and esports. He pointed out that WIPO has developed tailored mechanisms for the video game industry (see: WIPO ADR for Video Games and esports Disputes), including a Dispute Resolution Board model intended to quickly resolve issues during long development projects. WIPO also maintains a list of 2,000 specialized experts and provides recommended contract clauses and submission agreements.
As a final remark, he highlighted WIPO’s partnership with the Esports Integrity Commission (ESIC) and the launch of the new International Games and Esports Tribunal (IGET) (see: IGET Rules), a specialized and neutral forum designed to address the specificities of the video game and esports industries. The IGET is intended to handle both commercial IP disputes as well as integrity-related matters. Proceedings may be conducted fully online or in person at designated venues, including Australia, London, Singapore and Geneva.
In her comments to these presentations, Ewelina Jarosz-Zgoda asked to what extent as resulting from the regime of the Directive (EU) 2019/790, the collective work regime affects transparency and authors’ remuneration; it was noted that under this regime, remuneration is limited to salary, with no royalties, transparency obligations, or withdrawal rights. Leonid Shmatenko and Ewelina Jarosz-Zgoda both agreed on the importance of mediation in resolving disputes in the gaming industry but observed that its confidentiality may reduce predictability and questioned whether anonymized arbitral awards could be introduced.
In summary, the event offered an excellent opportunity to discuss the application of IP in the very dynamic video game industry."
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