Tabletop emulators are a popular platform for board game enthusiasts. They allow users to recreate the experience of playing physical board games with others online, fostering a vibrant community of gamers. However, this convenience comes with intellectual property (IP) considerations that both board game publishers, tabletop emulator developers and users must navigate.
At the heart of the issue lies the fundamental purpose of tabletop emulators: to provide a digital environment where users can interact with and experience the content of board games. Users may play licensed games on the platform, which can provide a useful additional commercialisation channel for board game publishers. Users may also use tabletop emulators to upload their own original content to be played online, which enables “play testing” of new games at scale and provides an opportunity to work out design issues before incurring the costs of physical board game production. This also creates a market of interested consumers and builds anticipation before the physical game is released, which has enormous benefit to board game publishers and creators.
However, some tabletop emulators also allow users to create and upload “mods” based on existing board games. These mods effectively replicate the original board game in the digital environment, including the branding, mechanics and artwork of the original game. Other users of the platform can then play these mods. An example of a tabletop emulator playing Leder Games’ popular board game title Root is set out below:
(Source: Steam Workshop::Root – Ultimate Collection (steamcommunity.com))
Board game designers and publishers invest time, effort and resources into developing their products, including intricate artwork, game mechanics and compelling branding. These elements may be protected by IP rights, which may be infringed by third party tabletop emulator mods of their games. Many board game publishers also offer licensed digital versions of their games on a commercial basis. Tabletop emulator mods may directly compete with the publisher’s own licensed offerings, potentially depriving the publisher of both physical board game and digital edition revenue.
However, the diffuse and multi-jurisdictional nature of online copying relating to user-generated content can complicate enforcement. In many ways, tabletop emulators present similar issues to those faced by the music industry in the days of centralised peer-to-peer file-sharing services such as Napster and KaZaA. It may not be cost-effective or even possible for board game publishers to identify and pursue individual mod creators for infringing conduct. Therefore, tabletop emulator developers themselves may be targeted by rights holders to try to reduce infringing conduct across the platforms.
The question of whether tabletop emulator developers should be held liable for content created and uploaded by mod creators that infringes IP rights in board games is predictably complex.
In Australia, potential liability of developers for copyright infringement may depend on whether the developer has authorised infringement by mod creators. This involves assessment of a number of considerations, including whether the developer was aware of the infringing conduct or was indifferent to it, whether it had any power to prevent the conduct, whether it took reasonable steps to do so, and the degree of control it exercised over the facilities used to commit the conduct.
In the trade mark context, liability of tabletop emulator developers for infringement of registered trade marks or for passing off or contravention of the misleading and deceptive conduct provisions of the Australian Consumer Law by mod creators will depend on whether the developer was sufficiently engaged in the conduct to be liable as a joint tortfeasor. This is a high threshold to meet.
It is important for board game publishers to be proactive in protecting their IP. However, user-based diffuse infringement at scale calls for a multi-faceted and strategic approach to rights management, particularly given the potential complexities of enforcement. Some examples of measures being employed in the tabletop emulator environment are discussed below.
Tabletop emulator developers themselves have taken proactive measures to try to discourage use of their platforms in ways that might infringe third party IP rights. This may include limiting the functionality of the emulator to allow for private, non-commercial use only. In addition, some tabletop emulator developers, including Board Game Arena, provide users with a detailed explanation of what is and is not allowed on the emulator platform, and maintain an up to date list of game licences available on the platform. Users are invited to assist in creating content for the digital versions of any of the games on the list, and to contact the platform to suggest other games that are not yet licenced, so that the platform may contact the respective rights holders.[1]
In the analogous context of computer game emulators that may assist porting from one game system to enable play on another, platforms may require users to provide proof of ownership of the games they wish to emulate. Even uses within those limitations may technically infringe board game publishers’ IP rights, and may still affect the market for the original game and/or approved digital versions. However, such measures may help tabletop emulators establish they are not authorising copyright infringement across their platforms and therefore mitigate the risk of liability for any infringement by users.
In efforts to get on the front foot, some board game publishers have engaged with emulator developers and mod creators to establish licensing frameworks. While Leder Games offers a digital version of Root, it also elected to licence a tabletop emulator version of the game, as featured above. The licensed mod compilation now includes not only all official Leder Games content but also multiple fan made factions, maps, card decks and other features. These have proven popular with Root fans. The licensed tabletop emulator mods have led to ongoing engagement and development within the Root fan community. Where appropriate, these kinds of collaborations may be an option for publishers to ensure that their rights are respected and that users are able to enjoy the digital versions of their games, while providing opportunities to promote engagement with players. As the Root fan “Better Bot Project” demonstrates, user-based content can also assist in ongoing game development for board game publishers as well.
The board game enthusiast community is also showing increasing awareness of IP issues and concern about use of tabletop emulators to infringe the rights of board game developers. It is a topic commonly discussed in online game forums. Education by board game publishers and tabletop emulator developers through ongoing engagement with their user base can help to ensure users of tabletop emulators respect IP rights.
As the popularity of tabletop emulators continues to grow, the need for a creative, proactive and nuanced approach to IP protection becomes increasingly important to enable the gaming industry to harness the potential of these digital platforms while safeguarding their IP rights.
If you have any questions, please contact Lauren Eade (leade@dcc.com), Stuart Green (sgreen@dcc.com), Ben Dziekan (bdziekan@dcc.com) or your regular DCC contact.
This article forms part of DCC’s Gaming & IP initiative
[1] https://en.boardgamearena.com/doc/BGA_Game_licenses