16 Page 16 Author of musical compositions with or without lyrics composed especially for the work. Article 4: If copyright is indivisible, the exercise of the right is regulated by agreement. In the absence of agreement, none of the authors may exercise this right in isolation, subject to a judicial decision in case of disagreement. However, each author may, in his own name and without the intervention of other authors, act against any infringement of copyright and claim damages in his own name. The courts may at any time make the authorization to publish a work subject to such measures as they deem necessary; They may, at the request of the opposing author, order that he does not contribute to the costs or profits of exploitation or that his name is not mentioned on the work. Article 5: In the case of a collaborative work, in which the contributions of authors can be identified individually, these authors may not, unless otherwise agreed, treat their works with new collaborators. However, they share the right to exploit their contribution independently, provided that such exploitation does not prejudice the joint work. The Belgian doctrine 20 often refers to the French definition of collaborative work in Article L113-2 of the French Intellectual Property Code, according to which a collaborative work is a collaborative work in the creation of which more than one natural person participated. However, unlike French law, the LPA makes no reference to collective works, so that this notion would not be recognized in Belgium and is therefore not included in this analysis.
30. Finally, a particular video game could also use elements of previous works and become a derivative work, requiring permission from the copyright holder of the original work. 21 KEY STAKEHOLDERS 31. Many stakeholders are involved in the development of a video game. The producer takes the initiative to develop and market the video game, selects the creative team, finds the necessary funds and signs contracts with various creators and technicians. Where appropriate, tasks will be divided between a production manager responsible for editorial decisions and an executive producer responsible for the financial management of the project. 22 At the creative level, as in the case of films, a screenwriter and director are involved in the creative process, although sometimes other people such as the interactivity designer, set designer or character designers are involved in the creation of a video game. All these graphic designers must work closely with computer programmers and the director of the video game “Free software and copyright: birth, ownership and exercise of economic rights” by Philippe Laurent (Free Software and copyright: creation, ownership and exercise of economic rights), Cahiers du Centre de recherche informatique et Droit nº A. Strowel & E. Derclaye.
cit., point 452 et seq. 22 A. Strowel, op. cit. cit., p. 35. 9 Page 9 PEOPLE INVOLVED IN THE CREATION, DEVELOPMENT AND MARKETING OF VIDEO GAMES 10. The video game industry has seen significant growth over the past 20 years, as has the number of people involved in the development of a particular video game. If in the 1980s the production company only needed the work and talent of a few people to create a video game, modern works require the combined efforts of dozens (sometimes hundreds) of artistic and technical staff before the video game can reach the shelves. The number of people involved depends on the size of the project and the company involved, the type of video game and the platform it was created for. Thus, in recent years, the video game market has developed with the professionalism and competence of the people who, in one way or another, develop the games.
As a result, the current development of video games may involve an even greater number of specialists than other complex arthouse works, such as films. These professionals may include: a. Producer: The producer supervises and supervises the work of all persons involved in the creation of the video game. Video game producers have, mutatis mutandis, a role similar to that of a film director. Other roles in this category include: i. Production coordinator ii. Production Assistant iii. Associate Producer iv. Production Manager b.
Game designer, which includes: i. Lead Designer ii. Level iii designer. Content Designer iv. Game Designer v. System Designer vi. Technical Designer vii. User Interface Designer viii.
Creative Director ix. Screenwriter x. Screenwriter v. Artist, the creator of the visual art of the game d. Programmer or engineer, Who creates and adapts video game code E. Audio designer, responsible for creating sound effects and other related sound elements f. Holders of related rights: i. Performers and actors, relating to voice and movement ii. Producers of audiovisual sounds and sound recordings 18 Page 18 TRANSFER OF RIGHTS 35. Rights ownership rules are complex, as they vary not only in terms of the legal status of authors in relation to their relationship with the maker of a particular video game, but also in terms of the classification of the work.
For computer programs, there is a presumption of transfer of exploitation rights to the employer, which is very convenient for video game manufacturers. However, this presumption only applies if there is an employer-employee relationship between the authors and the producers. 25 Where IT developers are engaged as freelancers in the context of a contractual service relationship (as consultants or independent developers), it is essential to include in the relevant contract a clause providing for the transfer of rights from the author to the producer in accordance with the requirements of Article 3(1) of the MA. 26 It appears that the rule of lightness laid down in Articles 3 and 3 of the LDA is not applicable in the present case, since the game may be classified as a cultural work. 27 In that regard, the classification of video games as audiovisual works also gives rise to rules favourable to the producer, which are manifestly different from the rejection of that classification. Kind. 18 CopA provides: Unless otherwise agreed, the authors of an audiovisual work and the authors of a creative element lawfully incorporated or used in an audiovisual work, with the exception of authors of musical compositions, shall transfer to the producers the exclusive right of exploitation of the audiovisual work, including the rights necessary for such exploitation, such as: Add subtitles or double the work (…). That classification gives rise to a presumption of assignment of rights, which is not limited to works created by employees, 28 and includes freelancers. In addition, producers may at the same time rely on their neighbouring rights, which confer on them, inter alia, the right to authorise the reproduction of the first fixation of the audiovisual work (Article 39 CopA).
36. A classification problem could arise if the original elements of the video game were created by independent authors without explicit assignment of rights. In such a case, the producer would prefer the audiovisual classification of works, which implies a presumption of transfer of exploitation rights to the producer/employer. As far as we know, such a case has not yet been brought before the Belgian courts. The producer is therefore advised to obtain written proof of the transfer of copyright by freelancers and music composers, including employees. Art. 25 Article 3 of the LPO: Unless otherwise provided by contract or law, the employer is deemed to be the assignee of rights to computer programs created by one or more employees or representatives in the performance of their duties or on instructions from their employer. 26 The main requirements of that provision are as follows: any contract concerning the author must be in writing. The contractual provisions relating to copyright and its modes of exploitation must be interpreted restrictively.
( ) The remuneration of the author, the extent and duration of the assignment must be expressly determined for each type of exploitation.
