On June 5th, the law firm PCS Avocat was invited to Wanadev’s offices to discuss the challenges of using artificial intelligence systems in the video game industry with several industry professionals.
Those present to discuss these topics included Samuel Patou, IT project manager specializing in AI at the Adeo Group; Nicolas Nguyen, founder of Semji, an AI solution for producing and optimizing web content; Come de Percin, founder of Wanadev; and Alexandre Daubois, lead developer.
Many questions from professionals focused on the legal implications of using these tools. PCS Avocat has previously participated in a training session for marketing and communication consulting agencies on the topic of artificial intelligence and intellectual property.
The subsequent discussion period allowed various professionals in the field to meet and share their experiences and questions regarding the different technical and legal aspects of artificial intelligence.
This event also provided an opportunity to discover the latest video game title from Wanadev: “Vestiges: Fallen Tribes.”
Find the full Meetup online.
Video game law: artificial intelligence
Legally, the concept of artificial intelligence and the tools used to implement it lack a clear and consistent definition. In fact, the distinctions between algorithmic artificial intelligence on the one hand and deep learning machines on the other greatly complicate the classification of AI systems and their respective applicable regulations.
As is often the case, new technologies are developing faster than the appropriate regulatory framework. It is within a framework of co-regulation that all stakeholders participate in establishing best practices and protecting users.
Use of artificial intelligence by video game studios
The video game industry has quickly benefited from the use of artificial intelligence systems in various fields:
- Given the development costs of video game titles, their lifespan and player engagement are major concerns. Artificial intelligence algorithms have been developed to study and influence player behavior in order to optimize their gaming experience.
- The development of non-player characters has also been greatly enhanced by machine learning AI tools, which have been able to create more realistic and expressive non-player characters, further promoting a more immersive video game experience.
- More recently, several video game studios have also been able to use AI to generate artistic content—computer code, graphic elements, text, sounds, and sound effects—more quickly in order to accelerate video game production.
Released at the beginning of 2024, the game “PalWorld”, published by the Japanese developer Pocket Pair, was plunged into the heart of a controversy concerning considerable similarities between the game’s content and creations from the Pokémon universe: the publisher had thus confessed to having generated many characters on its video game using artificial intelligence tools whose models can easily be imagined for its development.
Databases, AI and video games: What can be used and what can be protected?
The creation of databases used for training machine learning tools is subject to two main challenges: firstly, the intellectual property rights associated with the database itself, and secondly, obtaining the necessary licenses for such use.
Since 2019, data mining has benefited from an exception to copyright and database producer rights, allowing for the large-scale analysis of texts and data. This is intended to promote open data. In the absence of an objection from the author, this data mining is, in principle, authorized.
Video game developers wishing to use such artificial intelligence systems must therefore be vigilant regarding information about the databases used for AI training, in order to monitor or prevent the risks of counterfeiting, unfair competition, and breaches of confidentiality.
Litigation and database licensing
Significant litigation has developed in recent years on this subject: one example is the recent lawsuit filed by the New York Times against OpenAI and Microsoft for copyright infringement related to their news content. In the realm of image rights, a similar dispute pits several artists against the artificial intelligence databases Midjourney, Stability AI, and DeviantArt, requiring the latter to disclose their databases.
The operators of artificial intelligence tools are thus facing a conflict already pitting search engines against media groups.
In this context, a proposed US law aims to require companies to disclose the training data of their generative AI models, applying retroactively to those already made publicly available.
Negotiations for the granting of usage licenses are currently underway, foreshadowing the future of the artificial intelligence ecosystem.
Video games and artificial intelligence: the legal pitfalls
The ownership of creations generated by artificial intelligence tools also raises numerous questions.
At first glance, creations generated by artificial intelligence would not be eligible for copyright protection, as they do not meet the originality requirements stipulated by the Intellectual Property Code. This is compounded by the difficulty of identifying an author whose personality is evident in the creation.
However, it might be conceivable to grant authorship to the user of an artificial intelligence tool, provided they can justify all the personal steps they took in creating the work with the help of that tool.
In the context of video game development, many publishers include clauses in their contracts explicitly prohibiting developers from using artificial intelligence tools. From an evidentiary standpoint, it currently appears very difficult to prove the use of artificial intelligence tools in content production, particularly regarding computer code.
While it is conceivable that a legal risk exists regarding the exploitation or reuse of content protected by intellectual property rights, only access to the databases of these tools would allow for a reliable identification of the protected works potentially being used.
Artificial intelligence and personal data
Regarding the protection of personal data, the applicable regulations (GDPR) require all professionals collecting and processing this data to guarantee that data subjects are informed and can exercise their rights under the conditions stipulated by law. As a reminder, these rights include, in particular, the rights of access, rectification, data portability, and even erasure and deletion.
It also requires developers to ensure that they only collect data deemed relevant to the development of their products. Bound by a legal obligation to ensure the security of personal data protection, studios must exercise particular vigilance.
Finally, the misuse of artificial intelligence tools that can be used to create deepfakes could expose developers to civil and criminal penalties.
Lawyer – Video Game Law
Specializing in digital law, PCS Avocat has been advising video game publishers and studios on all legal issues related to their activities for over ten years. We also provide support and training to all professionals in the use of new artificial intelligence tools.
