Today, the benefits of using video games in education and training are no longer disputed. Simulation, sports, role-playing and strategy games help to improve eye–hand coordination, concentration and spatial orientation, exercise memory, develop perceptiveness, provoke logical thinking, and train users in making choices and decisions and foreseeing the consequences of their actions. Does this mean that teachers can use them in class without hesitation?
Games from various fields of knowledge (mathematics, logic, nature, geography, ecology, foreign languages) help users acquire knowledge and interest a child in a given topic, while at the same time offering interesting fun. “Serious games” have become an important instructional tool, used for example in the military (e.g. learning to manoeuvre a tank, simulating platoon fights, or studying war tactics) and in medicine (e.g. virtual operating theatres for future surgeons, and games used in patient rehabilitation or promoting healthy lifestyles and nutrition).
Games are gaining popularity in schools, finding their way into the syllabus and helping “teach by entertaining.” The time of pandemic and remote learning has only confirmed that education of the youngest generation, but also university students, requires digital learning aids. (The Ministry of National Education also seems to have noticed such a need, as evidenced by the launch in autumn 2020 of a pilot programme for the use of computer and video games in primary and secondary schools, intended to lead to the development of good practice examples, e-materials, as well as games.) The market offers teachers many free applications that either allow them to design their own typical educational games or contain educational games ready to use (e.g. for learning to calculate percentages, learning languages, etc). The developers of games or game engines grant free licences, usually allowing almost unlimited free use. The choice of paid educational games is huge, so teachers can find a game on almost any topic, appropriate for whatever instructional content.
Does copyright allow the use of video games in teaching?
However, a question arises about the possibility of using a video game that is not a typical educational game. For example, can a commercial game, such as SimCity, be used to teach children the basics of management and economics? The possibility and method of using a game in school or university teaching should be assessed from the point of view of regulations on permitted use included in the Polish Act on Copyright and Related Rights. EU regulations are also of key importance, including Copyright Directive 2001/29/EC and the amendment to it known as the Directive on Copyright in the Digital Single Market ((EU) 2019/790).
Generally speaking, fair use is the ability to use a work for free without having to ask the author or copyright owner for permission. Most often, fair use involves personal use or the right to use quotations, but the Copyright Act also provides for other exceptions to the rule of obtaining permission to use someone else’s work. One such exception is use for educational purposes.
Educational fair use
The legal classification of a computer game is relevant in determining whether a commercial computer game can be used in education on a fair use basis. The case law and the legal literature do not agree on what kind of work a video game is. A game consists of different categories of works: audiovisual, graphics, computer program. In principle, authors and courts agree that a video game cannot be equated with a computer program. This is of considerable importance in light of the continued exclusion of application of fair use of computer programs for educational and scientific purposes (Copyright Act Art. 77). It is assumed that a game is a miscellaneous or mixed work, a multimedia work, and its individual elements are protected. With this concept of protection, it can be argued that a computer game can be used under fair use in education (Copyright Act Art. 27). (And even assuming that there is use of a computer program, the Directive on Copyright in the Digital Single Market expressly allows for its use in the context of permitted use in teaching.)
Educational fair use permits the use of disseminated works and the reproduction of disseminated minor works or fragments of larger works by educational institutions and entities specified by the act. However, such use may be for the sole purpose of illustrating content conveyed for teaching purposes or for scientific activity. In the field of distance learning, the use of the work also follows these rules and, in addition, is permitted only to a limited and identified group of learners, teachers or researchers.
Fair use is an exception to the general rule of obtaining the author’s permission to use a work. Exceptions are subject to a narrow interpretation, meaning that if a form of use is not mentioned in the provision establishing fair use, it is unfortunately not permitted without the author’s consent. In practice, this means that a number of requirements must be met to legally use a video game under the educational exception.
Who can benefit from permitted educational use?
The catalogue of entities that may use a protected work (here, a computer game) during teaching includes institutions and entities dealing with education and research specified by statute, mainly schools of various levels, preschools, counselling centres and the like, educational centres, and universities.
The regulations do not require these entities to conduct non-commercial activities to be able to invoke fair use. (Directives 2001/29/EC and 2019/790 explicitly mention the non-commercial purpose of using works. In addition, the preamble to Directive 2019/790 states that the organisational structure and means of financing of an educational establishment should not be decisive factors in assessing whether the activities of an establishment are of a non-commercial nature.) Therefore, it is assumed that it does not matter whether there is a fee for instruction. It is crucial to establish that the primary purpose of the entity is education and not generating profit. Therefore, both public and private preschools, schools and universities can benefit from fair use.
Use of a game in traditional teaching
One can imagine many ways of using a game in teaching. One of them might be to play a game during a lesson, to discuss it or to listen to the soundtrack. Such use of a game is unlikely to involve active playing by the entire class. This is primarily due to technical obstacles imposed by the producers, which will prevent students from actively using it. Only the actual owner of a legal copy of the game can actively use the game, either on a disk or online via a user account. In such a situation, a teacher who presents the game or actively participates in it using students’ instructions (which answer to give, what to choose, what decision to make, etc) can actually be an active player.
Educational fair use includes the ability to use disseminated works (original and translations) in any way. An exception applies to use in the form of a reproduction: only disseminated minor works or fragments of larger works can be reproduced, without limitation as to the technology used, and therefore also digitally.
However, it must be remembered that use (including reproduction of a work) as part of teaching is limited to the purpose of such activities, i.e. the use of work in teaching is only to illustrate instructional content. The purpose of illustration is interpreted as supporting, enriching or complementing teaching or learning (as stated for example in the preamble to Directive 2019/790).
In principle, the teacher’s reproduction of even an entire game on a console or computer during a traditional lesson should be included in the catalogue of permissible forms of using disseminated works. In such a case, although the game is saved in the computer’s short-term memory (RAM), i.e. is reproduced (only fragments or entire minor works may be reproduced), it is a one-off, transient reproduction. It is allowed by the game producer itself so that the game can be played at all. Therefore, it should be assumed that such reproduction falls within the scope of another form of fair use specified in Art. 231 of the Copyright Act. (The author’s permission is not required for temporary reproductions of a transient or incidental nature, having no independent economic significance and constituting an integral and indispensable part of a technological process, the purpose of which is only to enable 1) transfer of a work in the ICT system between third parties through an intermediary or 2) lawful use of the work.) However, such an interpretation may be considered contrary to the purpose of the use of work. Since protected works may be used only to illustrate instructional content, this purpose should assume the use of only parts or fragments of works.
On the other hand, educational fair use does not allow a teacher to reproduce an entire game by creating tangible or digital copies that are then distributed to students. The provision permits reproduction of only minor works (a game is certainly not a minor work) or fragments of larger works. So, if there were such a technical possibility, the teacher could only reproduce parts of the game and make them available for students to play on computers or other equipment.
The fair use provisions impose an obligation to “identify the author and the source.” Therefore, a teacher using a game should at least indicate the producer of the game, or if the game is sourced from the internet, should provide the website address.
Of course, one can also imagine other ways to use a game for teaching purposes. A game could be used as the basis for students to create, for example, a scenario or the plot for a new quest, or for a lesson in character drawing. Such use of a game is a separate topic, the essence of which will be to assess whether products created this way are a compilation of elements of a game or are only inspired by it.
The use of games in online teaching
In the case of distance learning via internet, the same rules for using works apply as in the case of traditional teaching, i.e. the work should be used:
- Only by educational institutions
- To illustrate instructional content
- In the original or in a translation.
Also, the game producer and the source of origin must be identified, depending on the circumstances. There is some controversy over the proportion of a work that can be used in online distance learning.
It is unclear whether using a work as part of distance learning results in reproduction of the work, or this is a new field of exploitation of the work—communication to the public. In the first option, restrictions related to the possibility of copying only fragments of larger works or minor ones in full apply: one cannot remotely play an entire game for an entire class. In the second option, there is no reproduction of the game, so it can be made available in its entirety.
It seems that in the case of a teacher making a game available via an online platform (whether as part of streaming or by saving it on the platform), the teacher is reproducing the work, because the game will be played on the devices of the students from the class, and thus will be saved in their RAM. At the same time, there is no basis for concluding that this is an example of transient reproduction for the sole purpose of lawful use of the game as agreed by the game producer (fair use under Art. 231 of the Copyright Act). One might try to defend the view that in such a situation the student is using the game for his or her own personal use. Therefore, sharing the entirety of such a game may be considered to be outside the limits of fair use. Such an allegation would be justified especially in light of the latest directive (2019/790), which is explicit on the point that the very purpose of illustrating the content taught assumes the use of only a fragment of a work, not the whole. Thus, it should be considered that sharing an entire game during distance learning creates a risk of violating the rights of the game producer. Such risks can be removed by showing only fragments of the game.
The use of works in remote learning is possible only for a limited and identifiable group of learners, teachers or researchers. The digital learning environment should be a restricted-access area, so that only teaching staff and students can access it, through appropriate password authentication procedures.
In light of the current provisions, the use of computer games in teaching should be considered permissible. However, it is important to keep in mind the requirements for legal operation under fair use in education. It is ambiguous to determine in what portion a teacher can show students a game and demonstrate its functions and capabilities. However, since a computer game is intended only as a teaching aid to illustrate the content taught, it is safest to use only parts of the game, not the whole game, within the framework of fair use.
The current statutory regulation and interpretation of the limits of permitted educational use may change. The Directive on Copyright in the Digital Single Market (which was supposed to be implemented into Polish law by 7 June 2021) leaves member states free to exclude from fair use particular types of works or methods of use (in particular to determine the proportion of works that may be used), especially materials intended for the educational market. The Polish parliament has not yet adopted the relevant changes, and drafts have not been presented yet. Therefore, interpreted in the spirit of the applicable EU provisions, the existing regulations remain valid.
Katarzyna Pikora, attorney-at-law, Intellectual Property practice, Wardyński & Partners