Interaction of EU and UK copyright in a post-Brexit world: will video games get more protection than they bargain for?

Abstract

The UK's approach to copyright and its adoption of a closed list of categories of work has led to unforeseeable gaps in protection in video games and fails to recognize the intellectual creativity that has gone into various elements of a video game, such as in-game animation. However, the CJEU's decision in Cofemel (C-683/17) has sought to harmonize copyright in the EU and provides two simplified requirements for subsistence of copyright allowing for expansive protection and open ended categories of work. This decision broadens out copyright in a way which may fill in some of the gaps of protection for video games but at what cost? This article explores how Cofemel might impact the video games industry in practice, as well as the ways in which the UK courts might address Cofemel in light of its direct conflict with UK legislation at a critical political time where the UK is about to depart from the EU.