Protection and Regulation of E-Games in Brazil

19 May 2023

E-games have been an entertainment around the world for many years evolving into a prominent profession. Within the intellectual property, one must have knowledge of which area offers the necessary protection as a result of the branches of creation.

19 May 2023

E-sports has been attracting attention in recent years due to the large numbers of audiences it has been obtaining and the enormous amounts it generates. But what does E-games mean and how is this digital games market regulated in Brazil? To understand the games market, not only in Brazil, it is also necessary to understand the concept of community in games and how it affects the organization of this entire ecosystem.

The digital games market, also known as e-games, is one of the fastest growing in the world in recent decades, currently representing a sector of the economy that is larger than the music and film industries combined. The gaming business is complex and diverse, and so are the regulations that may apply. In Brazil alone, the leading country in the gaming market in Latin America and the 12th largest gaming market in the world, the gaming industry, driven by the pandemic, grew by around 140% in 2020 in micro transactions. In 2022, it reached 74.5% of Brazilians who said they play electronic games and 84.4% of Brazilians stated that electronic games are among their main forms of entertainment.

Behind only the USA and China, Brazil represents the third largest audience of e-sports in the world and an environment of competitions and national teams that does not stop growing, with the involvement of traditional football clubs such as Flamengo and Corinthians among team and athlete sponsors. Professional players even have their employment ties with the teams governed by the Pelé Law, which governs the professional athlete’s employment contract.

With games booming, regulation becomes increasingly important for sustainable growth and for the companies involved in this industry growth process to pay attention to the applicable laws within the scope of their activities, since they involve legal issues such as labor relations, intellectual property, data protection, information security, among others.

From the point of view of developers, intellectual property is of great importance to the need to protect the creation or use of works by third parties in their own games, with the creation of new games, brands, creation of soundtracks and skins of the games themselves. It is a way of encouraging the author to create, since he will be sure that only he, or others authorized by him, will be able to enjoy the economic exploitation of creation.

Within this universe of electronic games and the various subdivisions of intellectual property, therefore, one must have knowledge of which area offers the necessary protection as a result of the branches of creation. In principle and in general terms, for example, Brazilian legislation does not consider inventions or utility models the literary work, architectural, artistic and scientific works, computer programs themselves and game rules. Therefore, Brazilian legislation determines that the graphical interface of the game, the scenarios, the characters (including their visual and psychological aspects), the soundtrack, the plot, the texts and dialogues must be protected by copyright.

However, it is important to stress that copyright protects the expression of ideas, not the ideas themselves. This has two consequences: first, no game ideas are copyrighted until they are pinned in one. Second, similar ideas adopted in different games do not necessarily infringe the copyright of others, that is, if the registration of the same game genre contains different elements.

The name of the game, names of characters or places mentioned in the game can be registered as a trademark, for its use as an identifying sign of a product. In this context, it is recommended to file the registration request before making any information about the game available to the public, especially in relation to your name and images that will be used for the sale. In addition to ensuring the protection of such names and figures through the filing, it is recommended to check that there are no other companies and people using a similar or identical brand for other games before registration, preventing the name and commercial strategy of disclosure from having to be changed after release.

The protection of a technological solution that brings improvements in controls and consoles, devices for detecting movements and for connecting users, however, may be subject to patent protection, taking care of the protection of the game software itself through the right copyright.

When the Brazilian IP Law deals with computer programs themselves, it refers to the literal elements of creation, such as their source code. These elements are not subject to patent protection, as they are just the expression of a technical solution, being dependent on the programming language used. Thus, the source code can be protected only through copyright.

On the other hand, it is possible that a technical solution implemented by a computer program is subject to protection by an invention patent. This happens when the solution presents a technical effect and solves a problem found in the technique, which does not only concern the way this computer program is written.

And one cannot forget the industrial design that represents the possibility of protecting the ornamental form of a product that presents a new and original design, such as for example for consoles, controllers and portable devices, excluding the functionalities, types of materials and practical advantages from design.

Each protection with its particularities in obtaining the registration, requirements, duration of the exclusivity right, and even as to the body before which the protection will be requested. Above all, these differences may still vary according to the legislation of each country, despite the matter being relatively uniform globally, thanks to the signing of international treaties.

Thus, in addition to paying attention to the rights of third parties, the correct registration of creations must also be ensured with the competent bodies, such as the BPTO, at the School of Fine Arts, in the case of layouts and drawings, and at the National Library, for guarantee the protection of the used music tracks.

Nintendo is one of the companies that is most concerned with each of these points of attention regarding Intellectual Property. Founded in 1889, in Japan, it only entered the games market in 1969. Since then, it has faced disputes with the giants PlayStation and Xbox to guarantee the protection of its intellectual works.

Among them are classic games such as Super Mario, Zelda and Pokémon, in addition to their NES, Super Nintendo, Nintendo 64, Game Boy, Nintendo Wii, Nintendo Switch and many others that have marked generations.

Once the protection of the creation is guaranteed, it is then the need for companies to pay attention to the adequacy of the General Law for the Protection of Personal Data – LGPD (Law No. 13.709/18), since this applies to any operation of processing Personal Data carried out in the country, including for operations in digital media, as in the case of electronic games.

Among the other points provided for in the legislation, it should be noted that companies must only process the Personal Data effectively necessary for their activities, especially when the game is made available to children and adolescents, in which the law requires greater strictness on the part of those who will handle the personal data. In addition, information about treatment must be provided in a clear and accessible manner.

The violation of rights related to Personal Data, in addition to being able to result in financial fines and administrative sanctions, also end up tarnishing the reputation of companies in the eyes of players and the market as a whole.

One of the most relevant guidelines has been that of information security, especially for those who develop electronic games. As explained, the electronic game scenario is very complex, with it there is a community and the publisher often ends up being responsible for managing that community.

With great power always comes great responsibility and it is essential for the developer company to ensure the safety of its players and the maintenance of competitive integrity.

Care with cases of cheating (cheats) – with the use of some software or even hardware that gives the player an undue advantage, bringing risk to competitive integrity – theft of access accounts, game items, are topics that must also be addressed from a security point of view, as well as problems in the ethical context, with harassment, threats, cyberbullying both among casual players and professional players. Said conduct must be strictly observed and preventively controlled by publishers and e-sports organizations.

Finally, with the aim of implementing the legal framework for the electronic games industry, in October 2022 the Chamber of Deputies of the National Congress of Brazil approved the bill 2.796/2021 that regulates the manufacture, import, commercialization and development of electronic games in the country and also provides tax incentives for the game development or production sector.

The proposal covers computer programs for recreational purposes, cell phone applications and devices and accessories dedicated to running electronic games. The text now sent to the Senate provides that the manufacture, import, marketing and development of electronic games in Brazil will be free, as well as the provision of entertainment services linked to them.

According to the bill, it is free to promote disputes involving users of electronic games and fantasy games with the distribution of prizes of any kind in accordance with pre-established rules. Furthermore, the use and disclosure of data relating to results, statistics and mentions of names related to real sporting events in the development of fantasy games are allowed.

The Government will be responsible for determining the age classification – waiving any state authorization for the development and exploitation of electronic games and fantasy games covered by the law – in addition to supporting the training of human resources for the games industry.

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Rafaela Mattos



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