Gaming in India: Understanding the Legal Landscape Part I

Video games have become one of the world’s most popular forms of entertainment, with a strong presence across virtually every major market. India is no exception.  While India is already a major consumer of gaming content, there is growing interest in moving beyond simply consuming and exporting gaming-related content and becoming a stronger creator and developer within the industry itself. But what makes the Indian gaming market particularly interesting?

One of its defining characteristics is its strong focus on mobile gaming. And if you are new to the gaming world, you might reasonably ask: 

What exactly does “mobile gaming” mean? Don't worry, we are not about to make you learn an entire gaming dictionary.

There are several ways to play a video game, depending on the platform or device being used. Gaming has come a long way. We started with arcade machines, where players had to visit a dedicated venue to enjoy their favourite games. Then came consoles, which brought video games into people's homes and helped turn gaming into a mainstream form of entertainment. As technology developed, the gaming ecosystem became increasingly diverse. Consoles were joined by PC gaming, and eventually by mobile gaming. Yes, your phone can actually run video games.

Thanks to advances in mobile technology, smartphones are now capable of running increasingly sophisticated games directly on the device. When we talk about the gaming platform, therefore, we are simply referring to the type of device or system on which a player enjoys a video game, whether that is an a console, a PC, or a mobile phone.

Simple enough, right?

Well… not quite.

The gaming industry is much more than the device you use to play. It is a complex ecosystem involving players, developers, publishers, content creators, platforms, payment systems, advertising, esports, livestreaming, and much more.

In today's post, we will take a closer look at the Indian gaming industry. We will explore some of its most distinctive characteristics, as well as the key legal and regulatory issues that businesses should be aware of. If you are considering entering the Indian gaming market, whether as a developer, publisher, platform provider, investor or other industry participant, it is essential that you understand this landscape.

So, press start and begin learning about India's legal system.

Video game Concept 

Today, video games are far more than they were in their early days. What began with relatively simple graphics and limited sequences of pixels has evolved into a sophisticated form of entertainment capable of combining highly developed visual environments, complex narratives, professional voice acting, and soundtracks that can rival those found in the film industry.

This evolution is also relevant from a legal perspective. When approaching the video game industry from a legal standpoint, one of the first questions is deceptively simple: what exactly is a video game in legal terms?

The answer matters because the legal classification of a video game can determine the type and scope of intellectual property protection available to its different components.

If a video game were treated merely as software, for example, the protection afforded to it would primarily concern the computer program itself. However, a modern video game is considerably more than code. It may incorporate original graphics, music, dialogue, characters, artwork, animation, storylines and other creative elements, each of which may raise separate intellectual property considerations.

This distinction was particularly well illustrated by the Court of Justice of the European Union (CJEU) in Nintendo Co. Ltd and Others v PC Box Srl and 9Net Srl (Case C-355/12, 2014).

In that case, the CJEU recognised that video games constitute a complex matter, comprising not only a computer program but also graphic and sound elements which possess their own creative value. Consequently, the Court's reasoning supports a distinction between the protection of the computer program under the Software Directive (Directive 2009/24/EC) and the protection of the broader creative expression embodied in the game under the InfoSoc Directive (Directive 2001/29/EC).

In practical terms, this means that a video game should not necessarily be viewed as a single, indivisible piece of software. It may instead be understood as a composite creative work, in which several layers of intellectual property protection coexist. For rights holders, this can be particularly significant when determining how infringement should be assessed and which rights may be enforced.

What about India?

The legal position in India is, in many respects, less settled than the European Union. Although India has developed a robust intellectual property framework that is broadly aligned with international standards, its copyright legislation does not expressly recognize video games as a distinct category of protected work. Nor has Indian case law yet established a definitive legal characterization of video games under the Copyright Act, 1957.

This absence of legislative guidance and judicial interpretation creates a degree of legal uncertainty. Unlike the CJEU's approach in Nintendo v. PC Box, Indian courts have not yet had the opportunity to clarify whether a video game should be treated as a single composite work or whether its legal protection should instead be analyzed through the individual elements that comprise it.

The Copyright Act, 1957 therefore remains the primary source of protection. Rather than creating a specific category for video games, the Act protects the various types of works that may be incorporated into a game, including literary works, artistic works, musical works, sound recordings and computer programs.

The position of computer software is relatively clear. The Act expressly recognizes computer programs as literary works, meaning that a game's source code is capable of receiving copyright protection under the statutory regime applicable to software. This position was further reinforced by the amendments introduced in 1994, which strengthened the protection afforded to software developers and clarified the rights associated with computer programs.

The position is less straightforward for the game as a whole. One question that remains unresolved is whether a video game could qualify as a cinematographic film under the Copyright Act. Section 2(f) defines a cinematographic film as any visual recording produced through a process by which moving images may be generated, including works created through processes analogous to cinematography. On its face, this definition is broad enough to suggest that certain audiovisual elements of a video game could potentially fall within its scope. However, in the absence of judicial authority directly addressing this issue, any such conclusion remains speculative.

Consequently, from both a legal and practical perspective, the safest approach is not to rely on a single legal classification for the video game itself. Instead, developers, publishers and investors should identify each protectable component of the game and ensure that the relevant intellectual property rights are properly secured.

This means considering, among other things:

• the software and source code as computer programs;
• artwork, concept art, textures and graphic assets as artistic works;
• music, soundtracks and sound recordings;
• scripts, dialogue and narrative elements as literary works;
• characters, where they satisfy the applicable originality requirements; and
• any audiovisual sequences that may attract separate copyright protection.

This component-based approach is particularly important when structuring ownership, negotiating development and publishing agreements, outsourcing creative work or enforcing intellectual property rights against third parties. In a legal landscape where the status of the video game as a single copyright work has not yet been conclusively determined, ensuring that each constituent element is independently protected provides the greatest degree of legal certainty.

This is not merely a theoretical exercise. As India's gaming industry continues to expand and attract increasing levels of domestic and foreign investment, legal certainty surrounding intellectual property rights will become an increasingly important factor in encouraging innovation and the creation of original content. Until clearer judicial guidance emerges, careful management of the individual intellectual property rights embedded within a video game remains the most effective strategy for protecting gaming assets in the Indian market.