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Censorship of video games in india (all bark but no bite)

Censorship of video games in India (all bark but no bite)

The video gaming Industry in India has seen a massive change and development in the sphere of technology. It has transformed from being played on a computer or being sold out in cassettes to being played on various platforms like gaming consoles, virtual headsets, smartphones etc. Brilliant lifelike-graphics, sound effects, interesting story modes, real life objects etc. are responsible for such transformation in the field of video gaming.

“The overall gaming industry in India is pegged at Rs 5″,540 crore (FY19), is poised for high growth, with a likely 22.1% CAGR taking it to Rs 11″,880 crore by 2023, as per KPMG India. Both Indian and international gaming players are now eyeing the space in India.”[footnoteRef:1] [1: 2019 KPMG, an Indian Registered Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity.]

Provisions related to censorship of video games in India:

Indian Penal Code”,1860 and the Information Technology Act, 2008

The Indian Penal Code (“IPC”) and the Information Technology Act, 2008 (“IT Act”) penalize publication, distribution and transmission of obscene content. The IPC inter alia prohibits the sale, hire, distribution, exhibition, circulation of any obscene object and penalizes any person who engages or advertises or promotes or offers or attempts to do any obscene activity.[footnoteRef:2] The IT Act also penalizes the transmission of any obscene content[footnoteRef:3] or sexually explicit material in electronic form[footnoteRef:4] including child pornographic content.[footnoteRef:5] [2: Section 292 and 294 of the IPC”,1860] [3: . Section 67 of IT Act prescribes the following penalty: imprisonment for a term which may extend to three years and with fine which may extend to five lakh rupees.] [4: . Section 67 A of IT Act prescribes penalty: imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees.] [5: Section 67B of the IT Act prescribes the following penalty: imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees.]

Laws Affecting Action Based and Violent Games:

Many popular video games are action based, which attract the youth because they are violent and are explicitly filled with real-life crime-based scenarios. The provision of the Young Persons’ (Harmful Publications) Act, 1956 becomes relevant in such cases which makes it an offence to print, publish or otherwise be involved in the printing, distribution or selling of any publication portraying the commission of offences, acts of violence or incidents of a repulsive nature that can have a negative impact on a young person’s mind (that is, a person under the age of twenty years). The liability could be in the form of imprisonment or fine or both.[footnoteRef:6] [6: Penalty shall be imprisonment which may extend to six months, or with fine, or with both.]

Intellectual Property Rights:

Theme-based Casual games are often full of plot twists, sound effects, music notes, background templates, storyline, and attractive characters to add to the appeal of the game. Therefore, such works are subject to copyright protection, the use of such copyrighted material in the games without taking adequate permissions / licenses from the owner of copyrighted material can advance copyright infringement issued under the Copyright Act, 1957. The owner of the copyright can either take civil[footnoteRef:7] or criminal action against the infringer.[footnoteRef:8] It is to be noted that Copyright Infringement is a cognizable offence. [7: Injunction, suit for damages or account of profits.] [8: Copyright infringement or abetment of the same is punishable with imprisonment for a term which may vary between 6 months to 3 years and fine which may vary between Rs 50″,000 to Rs 2″,00″,000.]

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The Delhi High Court on 31st May 2012 passed a landmark Order in Sony Computer Entertainment Europe Ltd. Vs. Harmeet Singh & Ors.[footnoteRef:9] for grant of an Ex-Parte injunction against the Defendants from inter alia circumventing the technological protection measures—built in the PlayStation gaming consoles—to enable them to sell counterfeit/unlicensed gaming software or alter the consoles in such a manner that may amount to infringement of Sony’s trademarks.[footnoteRef:10] [9: MIPR 2013 (1) 0101] [10: The Copyright (Amendment) Act, 2012; brought into force on 7th June 2012]

The Defendants in the case had been—for a minor additional cost—selling/offering for sale Sony’s PlayStation 3 gaming consoles after physically tampering with the internal machinery of the gaming consoles to modify the original equipment of the Plaintiff so that infringing gaming software could be run on them. This was possible with the “Jailbreak” software that would break through the internal security features of the console and enable it to use unlicensed versions of gaming software.

In India, a user of an unregistered trademark cannot sue another party for infringement of its trademark but may institute only a passing off action against the defaulting party. However, proprietor will need to prove that the party at fault has been using the marks shadily.

Personality Right Violations:

Several games also seem to use the likeness, voice, reputation or popularity of a celebrity for a commercial benefit without the authorization from the celebrity. This may result in violation of the celebrity’s personality rights. A violation of such rights would result in the court passing an order restraining the company or person owning the game from displaying / exhibiting these games or using the image of the celebrity in such games and/or award damages to the celebrity for harm caused to the reputation of the celebrity.

In ICC Development (International) Ltd. v. Arvee Enterprises[footnoteRef:11] The court held that such rights can be exercised only by celebrities. If any person uses the name of a celebrity without his/her permission, the celebrity is entitled to an injunction, if the said celebrity could be easily identified using his name by the others. The court also held that infringement of right of publicity requires no proof of falsity, confusion, or deception, especially when celebrity is identifiable. Thus, in a similar manner, games using celebrity images/caricatures/voice/style etc. without due authorization, may be held to be infringing the respective celebrity’s personality rights. [11: 2003 (26) PTC 245]

Lack of appropriate provisions in Law

There is no regulated video game classification or censorship in India. Since gaming law

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in India is not fully developed, the legal classification derives from business practice and is

based on the technicalities of each specific case.[footnoteRef:12] [12: “Creating Virtual Wealth: Importance of Intellectual Property in the Animation & Gaming Industry” by Symbiosis Law School, Noida and Scriboard, New Delhi]

SCIENTIFICALLY PROVEN ADVANTAGES OF VIDEO GAMES

IMPROVES DECISION MAKING

All games have a gameplay where a player must make a set of choices to move forward with the objective. Most of these decisions have to be made in a fraction of a second. This means that the player must weigh the pros and cons in a flash to arrive at a conclusion. So, gaming simulates the process of making choices which is a good practice for real world problems.

HAND-EYE COORDINATION

Many a times, a gamer has to control a character in a fast-paced environment like a motor race, where constant vigilance has to be maintained to steer clear of obstacles. Enter the hand to eye coordination skills to test the user for fast adaptability to environmental changes. This makes the link between the hand and the eye sharp as a knife which is very beneficial in everyday life.

ACCELERATES ANALYTICAL ABILITY

Games like Portal, Antechamber and DOTA requires the player to understand the mechanisms on which the game is designed, and bring into life a number of strategies to complete the objective. During the process, the logical application increases and prolonged participation in gaming can increase overall analytical abilities. Also, the fact that no progress can be made without beating the current objective makes you think harder.

HELPS COPE WITH STRESS

You have to admit, playing a game of FIFA or even temple run while taking a break makes you feel more relaxed. It has been shown that video games can be used as a tool for stressed and depressed people to effectively reduce their frustration. This helps many people to be calm after a session of gaming.

BUILDS TEAM WORK

Team work is instrumental in any profession for innumerable tasks and robust products. Not surprisingly, it can be tapped into with the help of multi-player games. Titles like Left 4 dead, Borderlands teaches the players to clearly communicate with peers and also help them. This brings forth a sense of belonging to a team and the game is completed through a collective execution of ideas which also enables group thinking.

BOOSTS CREATIVITY

The exposure to surreal worlds, enticing characters and a powerful music score captures the imagination of anyone. Lucky for you, all these come as a package in games. This makes the player develop new and limitless ideas that can be applied in real life. Take an artist for example, who paints the characters of popular games. Games leave the players wanting more which creates an affiliation to technology and it’s uses.

GAMES CAN BE EDUCATIONAL

Video games can be used as a medium to aid in the learning process of kids. The idea of a game naturally excites children which makes it an ever-powerful tool to teach mathematics, pattern matching and language skills. This way, learning and fun can go hand in hand. Simulators of flight and driving helps the learner get used to the specifics of motor skills before even hopping on to a vehicle. It boosts confidence and serves as an excellent practice to the user.

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FITNESS

The past couple of years has seen an emergence of motion enabled consoles like PlayStation Move, Xbox Kinect which revolutionized the way games are played. With these in the picture, games which made full use of the motion sensing/ Fitness based games -Zumba fitness rush, Active 2 by EA sports have made it possible to exercise at home in a fun way. Gaming and fitness at once are like hitting two birds with one stone.

FASTER RESPONSE TIME

Getting used to reacting quickly while playing action packed games results in faster response times in everyday life. It makes your mind attentive to stimulus.

ENTERTAINMENT

Just like movies and music, gaming is a source of high-end entertainment when life becomes mundane. It’s like living through a movie where you have control of your actions. With the advances in virtual gaming, devices like Oculus Rift creates your own world to have a good time.

As with most forms of entertainment, video games and video gaming is rife with controversies in the United States. Such controversies primarily target the presence of violence which dominated many early video games and continues to be a major component of many games today.

A notable event regarding violence in video games appeared from 1997–1999, during which the state of Arizona attempted to make the selling of violent material to minors illegal. Even though it was never approved, Wal-Mart banned over fifty video games and The Columbine School shooting of 1999 changed the ideas of the debate. Instead of the argument being fixated on morality a new theory was created that tied violent video games to the desensitization and increased aggression of American children. This debate paired with Columbine caused the Sega game company to stop the release of a light gun with the Dreamcast.

In 2010 the Court case Schwarzenegger V. Entertainment Merchants Association (now titled Brown v. Entertainment Merchants Association) struck down a recent California law that banned the sale of certain violent video games to children without parental supervision. The Court ruled that video games were protected under the First Amendment of the Constitution, just like other forms of media. Arizona and California are not the only states that have attempted to pass laws on violent video games and these laws have been tested repeatedly in federal courts over the past decade and all have been struck down.

Currently 85% of American parents are aware of the ESRB rating system and many are finding parental controls on video game consoles useful.

REGULATION OF VIDEO GAMES IN USA

That’s the Entertainment Software Rating Board (ESRB). Founded in 1994, the board is a sponsored part of the Entertainment Software Association. The ESRB assigns six different ratings:

Early Childhood (titles suitable for young children)

Everyone (suitable for all, but may have some mild fantasy violence or language)

Everyone 10+ (ages 10 and older)

Teen (ages 13 and older)

Mature (17 and older)

Adult (18 and older)

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