Copyright and game jams, hackathons and competitions
Game jams, hackathons and competitions are some of the methods for activating and engaging the game development community (as demonstrated for example by the popularity of Poland’s nationwide online game jam #zostanwdomurobgry, held by the Indie Games Polska Foundation on 30 March – 6 April 2020 under the aegis of the Ministry of Culture and National Heritage and the Ministry of Science and Higher Education). Organising and promoting a competition is relatively uncomplicated. There are benefits on both sides. The participants have an opportunity to present their work, and the organiser gains access to a range of creative proposals. But such competitions pose copyright challenges, as we discuss below.
The organiser needs to draw up clear rules for participating in the competition. The rules should specify, at a minimum, the subject of the competition (the activities expected of participants), the timetable and manner of submission of works for the competition, who is eligible, the procedure for selecting the winners, the prizes to be won, and appeal provisions (if any). A key provision of the rules is identification of the prize. It might be conclusion of a contract to produce and distribute the winning work, or it might be a cash or in-kind prize.
In the case of a competition involving creation of a competition work, the rules should include provisions on the criteria and parameters for the works (characteristics, technical specifications), and also representations concerning authorship of the work. If the organiser intends to exploit works submitted in the competition, the rules must contain appropriate copyright provisions.
Copyright to competition works
The organiser of the competition will acquire ownership and copyright to the winning work only if it has included such a reservation in the undertaking to grant a prize. Then acquisition will occur upon payment of the prize (Civil Code Art. 921 §3). If there is no provision on acquisition of ownership or copyright in the competition rules, the organiser will not acquire these rights.
This provision of the Civil Code does not indicate whether acquisition of copyright must take the form of a written contract. However, the Act on Copyright and Related Rights clearly provides that transfer of economic copyright to other persons requires compliance with written form under pain of invalidity. Thus, for evidentiary reasons and to avoid doubts as to the scope of acquisition of rights by the competition organiser, it is recommended to conclude a written contract transferring copyright to the work.
But it is not always necessary to acquire copyright to the competition work. More and more often organisers provide in the competition rules that the contestant will grant a licence to use the competition work. It should be borne in mind that an exclusive licence (like transfer of economy copyright) requires written form under pain of invalidity. However, a non-exclusive licence may be granted in any form (a provision to this effect in the competition rules will suffice).
What to pay attention to in the rules or the contract concerning the competition work
Both the competition organiser and the participants should pay particular attention to the following issues:
- Fields (methods) of exploitation of the competition work—the designation of fields of exploitation sets the boundaries of use of the work by the organiser, and also indicates the scope of transfer or grant of a licence by the contestant
- Derivative rights, i.e. the possibility of modifying or elaborating the competition work—creation of derivative works based on the competition work, and disposing of derivative works, requires the consent of the original creator of the work, i.e. the contestant
- Territory and duration of the licence, rules for terminating the licence, and sublicensing rights, if the rules provide for the contestant to grant a licence to the organiser—it is important to bear in mind the controversies surrounding “perpetual” licences, although the courts are showing the first signs of permitting indefinite licences in Poland
- Moral copyright, which unlike economic copyright is inalienable—importantly, acquisition of copyright to a competition work does not deprive the contestant of protection of his or her moral rights
- Ensuring the participants’ consent to use of their image—under copyright law, a person whose image is recorded and disseminated must consent to this use
- Designation of the governing law, particularly in international competitions—similar-sounding legal concepts may be regulated entirely differently in various countries (for example, a “perpetual” licence, derived from and permissible in the United States, would be controversial in Poland).
The issues mentioned above do not exhaust the questions surrounding acquisition of copyright or issuance of a licence in competition procedures. The rules, like a contract, should be drafted to meet the needs of the specific competition, the works, and the organiser. And we encourage participants to read the rules carefully.
Dr Monika A. Górska, attorney-at-law, Intellectual Property practice, Wardyński & Partners